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2010 DIGILAW 27 (GUJ)

SHABIRA AMIN TAJWANI v. STATE OF GUJARAT

2010-01-22

ABHILASHA KUMARI

body2010
JUDGMENT SMT. ABHILASHA KUMARI, J. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the issuance of a Writ of Certiorari or any other appropriate Writ or order, quashing and setting aside the impugned order dated 28.07.2009 passed by the learned Principal Senior Civil Judge, Junagadh, below Exhibit 170 in Regular Civil Suit No.696 of 1998, whereby, the said application for condoning the delay of 234 days and setting aside the abatement, has been rejected. 2. Briefly stated, the relevant facts of the case are that the sole plaintiff of the abovementioned suit, Amin Ibrahim Tajwani (now deceased) expired on 08.04.2007. The suit had been instituted for grant of declaration and permanent injunction against the respondents. The petitioner No.1 is the widow of the deceased plaintiff. The petitioners Nos.2 to 6 are the daughters of the deceased plaintiff and petitioners Nos.7 to 10 are the sons of the deceased plaintiff. The petitioners Nos.8 to 10 are minors. The petitioners filed the abovementioned application for condoning the delay of 234 days caused in filing the application and for setting aside the abatement, by joining them as heirs and legal representatives of deceased plaintiff Amin Ibrahim Tajwani. This application has been rejected by the Trial Court, by passing the impugned order, giving rise to the filing of the petition. 3. Mr. Anshin H. Desai, learned counsel for the petitioners, has made the following submissions: (a) That the impugned order rejecting the application for condonation of delay and setting aside the abatement is against settled principles of law as, the provisions contained in Order 22 Rule 9, sub-rule 3 of the Code of Civil Procedure, 1908 (“the Code”) provide for setting aside the abatement if the applicant shows sufficient cause for the same. (b) That in the present case, sufficient cause has been shown by the petitioners as the petitioner No.1, who is the widow of the deceased plaintiff, is a Purdahnashin lady and could only move the application when she came to know from the learned advocate for the deceased plaintiff, about the filing of the suit. (b) That in the present case, sufficient cause has been shown by the petitioners as the petitioner No.1, who is the widow of the deceased plaintiff, is a Purdahnashin lady and could only move the application when she came to know from the learned advocate for the deceased plaintiff, about the filing of the suit. The petitioners Nos.2 to 10 are daughters and sons of the deceased plaintiff, some of whom are minors, and as the delay of 234 days is not a gross one, and the cause of substantial justice can be served if a liberal construction is given to the term “sufficient cause”, the application ought to have been allowed by the Trial Court. (c) That by rejecting the application, the petitioners have been deprived of their valuable right to sue. A hyper-technical view such as the one adopted by the Trial Court, is not warranted in law and the only ground on which the application has been rejected is that it has not been filed within the prescribed period of limitation i.e. 90 days. (d) That the petitioner No.1 is a Purdahnashin and cannot be expected to have information regarding the filing of the suit by the deceased plaintiff. The petitioners have approached the Trial Court with the application for condoning the delay and setting aside the abatement, on coming to know from the learned advocate, regarding the pendency of the suit. There is no reason why the bona fides of the petitioners should be doubted. The reasons stated by the petitioners in the application have not been believed by the Trial Court even though there is no material no record to the contrary. (e) That no prejudice would be caused to the respondents if the abatement is set aside and the petitioners are permitted to pursue the litigation. By passing the impugned order, the petitioners are likely to suffer irreparable loss, damage and injury, which cannot be compensated in terms of money, as the right to sue as heirs and legal representatives of the deceased plaintiff survives and, if the impugned order is allowed to stand, it would amount to a denial of the right of hearing the suit on merits, therefore, the impugned order may be quashed and set aside, and the petition allowed. In support of the above submissions, the learned counsel for the petitioners has placed reliance upon the following decisions: (i) Sardar Amarjit Singh Kalra (Dead) by LRs and Others v. Pramod Gupta (Smt) (Dead) by LRs and Others - (2003)3 SCC 272 . (ii) K. Rudrappa v. Shivappa - (2004)12 SCC 253 (iii) Jaladi Suguna (Deceased) through LRs v. Satya Sai Central Trust and Others - (2008)8 SCC 521 . (iv) Ram Nath Sao Alias Ram Nath Sahu And Others v. Gobardhan Sao And Others - (2002)3 SCC 195 . (v) Kantilal and Brothers v. Pragji Parshottam's Heir and Anr. - 2006(1) GLH 341 . 4. Opposing the petition, Ms. V.S. Pathak, learned Assistant Government Pleader for the respondents, has submitted that the impugned order does not disclose any error or law or jurisdiction, therefore, this Court may not interfere. The application has been filed belatedly and there is no sufficient cause for explaining the delay, except that the petitioner No.1 is a Purdahnashin lady. The reasons stated in the application are neither genuine nor sufficient and the Trial Court has passed the impugned order after proper appreciation of the factual and legal position, hence, the petition may be dismissed. 5. I have heard the learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. 6. A perusal of the contents of the application (Exh.170) for condonation of delay, setting aside the abatement and bringing the petitioners on the record of the suit reveals that in paragraph-4 thereof, the petitioners have clearly stated that the petitioner No.1, who is a Purdahnashin, is the widow of the plaintiff and the other petitioners are his daughters and sons. It has further been stated that the petitioner No.1 did not have any knowledge regarding the suit and on being informed of its pendency by the learned advocate for the deceased plaintiff, and after making necessary inquiries and taking legal advice, the petitioners have filed the application with a prayer to condone the delay of 234 days for joining them as heirs and legal representatives of the deceased plaintiff, by setting aside the abatement of the suit. It is further stated in the said application that the suit property is ancestral in nature and the petitioners have an interest in the same, which shall be adversely affected if they are not joined in the suit. The Trial Court, while passing the impugned order, has observed that the reasons stated in the application for condoning the delay and setting aside the abatement, are not “genuine and sufficient”. It is further stated in the said order that the deceased plaintiff expired on 08.04.2007 and the application has been filed after lapse of a long time, therefore, it is incumbent upon the petitioners to explain the day-to-day delay. The reason given by the petitioners that the petitioner No.1 was not aware of the pendency of the suit until being so informed by the advocate has also not been found to be genuine or sufficient, by the Trial Court. Having observed that the Court should not be “over-strict and highly technical, so as to sacrifice the cause of substantial justice in an application for condonation of delay”, the Trial Court has proceeded to reject the said application on the ground that there is gross negligence, therefore, a liberal view for condoning the delay cannot be taken. Why the Court has not found the reasons stated in the application to be “genuine or sufficient”, and what is the “gross negligence” that has been committed by the applicant, has not been elaborated, in the impugned order. 7. In Sardar Amarjit Singh Kalra (Dead) by LRs and Others v. Pramod Gupta (Smt) (Dead) by LRs and Others (supra), the Supreme Court has observed as below: “26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain in tact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the Khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and brining on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. The rejection by the High Court of the applications to set aside abatement, condonation and brining on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not interdependent upon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others, as well.” Further, in K. Rudrappa v. Shivappa (supra), the Supreme Court has held that a hyper-technical view should not be taken in rejecting an application for setting aside abatement. The relevant observations are reproduced hereinbelow : “10. .......In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law.” In Ram Nath Sao Alias Ram Nath Sahu And Others v. Gobardhan Sao And Others (supra), explaining the expression “sufficient cause”, this is what the Supreme Court had to say: “The expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963 or Order 22 Rule 9 of the CPC or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. However, courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. (Para 12)” (Emphasis supplied) 8. From the above principles of law, it emerges that there can be no straitjacket formula for accepting or rejecting the explanation furnished for the delay or taking steps for setting aside the abatement. Each case would have to be decided on the basis of the facts and circumstances obtaining therein. What would constitute sufficient cause would, therefore, be dependent on the peculiar facts of the case. However, when no inaction, negligence or lack of bona fides can be imputed from the facts of the case, adopting a hyper-technical view regarding the explanation furnished, is not warranted. In the present case, there is no dispute regarding the fact that the petitioner No.1 is the widow of the sole plaintiff and the other petitioners are his daughters and sons, some of whom are minors. It is also not disputed that the petitioner No.1 is a Purdahnashin lady. In the present case, there is no dispute regarding the fact that the petitioner No.1 is the widow of the sole plaintiff and the other petitioners are his daughters and sons, some of whom are minors. It is also not disputed that the petitioner No.1 is a Purdahnashin lady. There is no material on record to indicate that the averments made in the application for condoning the delay and setting aside the abatement, or the explanation furnished by the petitioner is false or incorrect, or that the petitioners are lacking in bona fides. Further there is no material to lead to the inference that the petitioners were aware about the pendency of the suit or that they deliberately, or carelessly, did not take steps to prefer the application within the stipulated period of time. On the contrary, the averments made in the application have remained uncontroverted. 9. In light of this situation, the ground for rejection of the application, as stated in the impugned order, that the reasons mentioned by the petitioners are not “genuine or sufficient”, does not appear to be based upon any material on record. It has been observed by the Trial Court in the impugned order that there is gross negligence on the part of the petitioners, therefore, a liberal view for condoning the delay cannot be taken. What negligence has been committed by the petitioners, has not been elaborated upon in the impugned order. Mere delay cannot be termed as negligence, especially when the petitioners have offered an explanation for the same. Moreover, the reason given by the Trial Court that the petitioners have to explain the day-to-day delay, as stated in the impugned order, is also not legally sustainable, in view of the principles of law laid down in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others - AIR 1987(1) SC 1535, wherein it has been held that day-to-day delay need not be explained. 10. The object behind the provisions of Order 22 of the Code is to ensure continuation of the legal proceedings so that they can culminate in an effective adjudication. By non-suiting the petitioners on hyper-technical grounds, not only has their right to sue been lost, but the cause of substantial justice has also been adversely affected. 11. 10. The object behind the provisions of Order 22 of the Code is to ensure continuation of the legal proceedings so that they can culminate in an effective adjudication. By non-suiting the petitioners on hyper-technical grounds, not only has their right to sue been lost, but the cause of substantial justice has also been adversely affected. 11. For the reasons stated hereinabove, and as the impugned order has been passed in erroneous exercise of jurisdiction vested in the Trial Court and is not in accordance with settled principles of law, the interference of this Court is clearly warranted. 12. Accordingly, the petition is allowed. The impugned order dated 28.07.2009 passed by the learned Principal Senior Civil Judge, Junagadh, below Exhibit 170 in Regular Civil Suit No.696 of 1998, is quashed and set aside. Rule is made absolute. There shall be no orders as to costs. (NRP) Petition allowed.