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2010 DIGILAW 408 (GUJ)

Revaben Naranbhai Chauhan Through Poa Umeshbhai N. Chauhan v. Dineshbhai Dhulabhai

2010-09-01

S.DAVE, SUDHANSU JYOTI MUKHOPADHAYA

body2010
Judgment S.J. Mukhopadhaya, CJ.—This appeal under Clause 15 has been preferred by the appellant against an order dated 16.6.2010 passed by the learned Single Judge, whereby delay of 393 days in preferring the Second Appeal has been condoned. 2. Learned Counsel appearing on behalf of the appellant would contend that the respondents - applicants had knowledge of the first appellate order; the delay has not been properly explained; no sufficient ground has been shown, and that the learned Single Judge took financial condition of the respondents - applicants into consideration, though there was no such pleading. He placed reliance on the decision of the Supreme Court in Balwant Singh vs. Jagdish Singh and Ors., 2010 (6) Scale 749 and submitted that such unexplained delay should not have been condoned. 3. From the petition for condonation of delay preferred by the respondents - applicants, it will be evident that the applicants belong to Chamar Community, a socially, economically and educationally backward community. Two members of the said community had filed petition before this Court in July, 2009 and by an order dated 16.11.2009, the Court observed that if such members of the community are aggrieved by the order of issuance of succession certificate, they may file appropriate application for leave to prefer appeal and challenge the same by way of second appeal. This Court also observed that against the aforesaid two orders, the remedy available to the community members is by way of filing Second Appeal, and the application was accordingly disposed of. 4. The original respondents, who are members of the Chamar Community took plea that land belonged to entire community and the said community is using the land even as on the date, and the property is not an individual property of the respondent - appellant herein. After the Court’s observation that the aforesaid two members of the community can prefer Second Appeal, they tried to negotiate with the respondent - appellant herein and in fact, as per certificate issued by Talati, it was shown that the land belongs to entire Chamar community. Ultimately, the succession certificate having issued in favour of Power of Attorney of the appellant herein, the members of the community approached respondents- appellants to prefer application seeking leave to appeal. As some time was consumed in this process and they could not move application in time, they prayed to condone delay of 393 days 5. Ultimately, the succession certificate having issued in favour of Power of Attorney of the appellant herein, the members of the community approached respondents- appellants to prefer application seeking leave to appeal. As some time was consumed in this process and they could not move application in time, they prayed to condone delay of 393 days 5. Learned Single Judge by impugned order dated 16.6.2010, having noticed the aforesaid facts and on being satisfied with the grounds, condoned the delay by a detailed order, wherein financial position was also discussed. 6. Learned Counsel appearing on behalf of the appellant suggested that the financial position was not pleaded, but such submission cannot be accepted as a specific pleading was made by the respondent’s Advocate that he belongs to Chamar community and he moves the application on behalf of the entire community people. They being socially, economically and educationally deprived persons, learned Single Judge also noticed their financial position. 7. Learned Counsel for the appellant referred to the decision of the Supreme Court in the case of Balwant Singh vs. Jagdish Singh (Supra), but the observations therein do not lend support to the appellant, but the respondent. The apex Court at paragraph 16 finally observed as follows:— “ . . . . . . . . . . The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legl representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.” 8. In the present case, they explained the delay as is clearly understood by the learned Single Judge, and such inordinate delay for bona fide reasons having noticed, if learned Single Judge in social interest of down-trodden people condoned the delay, no interference is called for. In absence of any merit, appeal is dismissed. No costs.