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2013 DIGILAW 702 (GUJ)

Narendra Dubey v. Bhuneshwar Chaitanyakumar Trivedi

2013-12-04

ABHILASHA KUMARI

body2013
JUDGMENT : ABHILASHA KUMARI, J. 1. The present application has been filed by the applicant (original defendant) against the judgment and order dated 17.04.2013, passed by the learned Judge, Court No.6, City Civil and Sessions Court, Ahmedabad, in Civil Misc. Application No.177 of 2013, whereby the said application for condonation of delay in filing an application for restoration of the Suit, being Summary Suit No.2588 of 2010,has been rejected. 2. The applicant is the Proprietor of A.P. Enterprises. The respondent herein is the original plaintiff of Summary Suit No.2588 of 2010. The City Civil Court, during the pendency of the Suit, passed an order to serve the applicant through Registered Post A.D. Summons were served at the address of the applicant as also the place of business of the applicant, on 25.11.2010. The notice was received by an office bearer of the applicant. According to the applicant, at the time of receiving the summons, he was not present in Mumbai. On receiving a message regarding the summons, the applicant approached his advocate Mr. Bhupendra Mishra at Mumbai, who advised him to appear before the City Civil Court, Ahmedabad. The applicant, along with advocate Mr. Bhupendra Mishra, went to Ahmedabad and engaged a local advocate at Ahmedabad to appear before the City Civil Court. According to the applicant, the advocate at Ahmedabad informed him that he would file his appearance and a Leave-to-Defend application. However, the local advocate at Ahmedabad did not file his appearance or proceed any further with the matter. 3. The respondent/plaintiff preferred an application for proceeding ex-parte under Order 37 Rule 3 of the Code of Civil Procedure, 1908. The applicant states that on 17.12.2010, he was out of the country on a business tour for a fortnight. On his return, he occasionally inquired about the proceedings of the Suit and every time received a positive reply from the local advocate at Ahmedabad. In the month of January, the local advocate at Ahmedabad approached advocate Mr.Bhupendra Mishra at Mumbai, through a letter declaring that he had retired from the matter. According to the applicant, the advocate at Ahmedabad never informed the applicant about the decree passed by the City Civil Court against the applicant. The Suit was decreed ex-parte against the applicant and a decree for Rs.10,00,000/- with costs of the Suit and interest, was passed against the applicant. The applicant and advocate Mr. According to the applicant, the advocate at Ahmedabad never informed the applicant about the decree passed by the City Civil Court against the applicant. The Suit was decreed ex-parte against the applicant and a decree for Rs.10,00,000/- with costs of the Suit and interest, was passed against the applicant. The applicant and advocate Mr. Bhupendra Mishra came from Mumbai on 02.02.2011 and it was only then that they were informed that the Summary Suit had been proceeded ex-parte against the applicant on 7-1-2011. A certified copy of the order was applied for on the same day and was delivered on 03.03.2011. The applicant filed an application for restoration of the Suit on 21.02.2013. As there was a delay of 721 days in filing the said application, therefore, an application for condonation of delay also came to be filed. The application for condonation of delay has been rejected by the impugned order dated 17.04.2013. Aggrieved thereby, the petitioner has filed the present Revision Application. 4. Mr.Hitesh S. Padhya, learned advocate for the applicant has submitted that the advocate of the applicant at Mumbai had come to Ahmedabad with the applicant and had engaged a local advocate. However, the name of the local advocate at Ahmedabad is not known to the applicant. Though the applicant has signed upon the Vakalatnama, he could not come to know the name of the advocate as the column of the name was blank. The local advocate at Ahmedabad had assured the applicant that he would file the Vakalatnama and an application for Leave to Defend the Suit. However, he did not do so and the suit proceeded ex-parte and a decree came to be passed against the applicant. Thereafter, the applicants advocate at Mumbai contacted the advocate at Ahmedabad, who returned the file and a certified copy of the judgment was applied for and procured. 4.1 It is further submitted that the Suit has been decreed ex-parte due to the negligence of the advocate at Ahmedabad who was given a Vakalatnama and the fees, but did not file the Vakalatnama or proceed further in the matter. That the office of the advocate was under renovation and due to such circumstances, the file handed over to the advocate at Ahmedabad was misplaced for sometime. That the office of the advocate was under renovation and due to such circumstances, the file handed over to the advocate at Ahmedabad was misplaced for sometime. On the file being found, the applicant, with the help of his advocate at Mumbai applied for a certified copy of the order in the Suit and drafted the application for restoration as well as the application for condonation of delay. 4.2 That there are genuine grounds to challenge the ex-parte order passed in the Summary Suit, which the petitioner could not defend. If the delay is not condoned and the application is not heard on merits, the applicant will not get a chance to put forward his defence and would suffer irreparable loss that cannot be compensated in terms of money. 4.3 On the above grounds, it is submitted that the application be allowed. 5. I have heard learned counsel for the applicant, perused the averments made in the application, contents of the impugned order and other documents on record. 6. A perusal of the impugned order goes to show that the main ground for the rejection of the application for condonation of delay is that the applicant has not shown sufficient cause for the delay. The City Civil Court has observed that the name of the advocate at Ahmedabad has not been disclosed in the application by the applicant. For this reason, the ground advanced for condonation of delay, to the effect that the advocate was negligent, is not convincing. It is further observed that the other explanation for the delay, that the file was misplaced as the office of the advocate was being renovated is also not convincing because it has been stated on behalf of the applicant that the advocate had intimated the applicant that he would retire from the case. No affidavit has been filed in support of the above averments or in support of the application for condonation of delay, therefore, the City Civil Court found the explanation of the applicant unconvincing and came to the conclusion that the applicant had failed to show sufficient cause. 7. Having perused the impugned order and other documents on record, especially the application for condonation of delay and the explanation rendered by the applicant, this Court finds that apart from vague assertions, no specific or reasonable explanation has been given by the applicant for the condonation of the delay. 7. Having perused the impugned order and other documents on record, especially the application for condonation of delay and the explanation rendered by the applicant, this Court finds that apart from vague assertions, no specific or reasonable explanation has been given by the applicant for the condonation of the delay. The submissions advanced by the learned advocate for the applicant that the applicant does not know even the name of the local advocate at Ahmedabad engaged by him, despite his having signed upon the Vakalatnama, is absolutely unconvincing and unbelievable and appears to be an afterthought to cover up the carelessness of the applicant in pursuing the proceedings. By no stretch of imagination, can it be said that the explanation rendered by the applicant for the delay even remotely constitutes sufficient cause to condone the delay. The City Civil Court has, in the view of this Court, rightly arrived at a conclusion that the applicant has failed to show sufficient cause to condone the delay. By rejecting the application of the applicant, the City Civil Court has not committed any jurisdictional error so as to make its order liable to the interference of this Court under its revisional jurisdiction. 8. The applicant has tried to throw the blame for his own carelessness and negligence upon an unnamed advocate whom he has purportedly engaged. The stand of the applicant is contradictory. On the one hand, he asserts that he does not know who the local advocate at Ahmedabad is, whom he had himself engaged by coming to Ahmedabad and on the other hand, he asserts that he had made enquiries from him after he returned from his foreign trip. The explanation rendered by the applicant erodes the very veracity of his stand. 9. It is evident from the material on record that the applicant has failed to pursue his legal rights diligently and he has been careless and negligent in prosecuting the matter. The length of the delay may not have much importance but what is of utmost importance is that the applicant should show sufficient cause for the condonation of the delay. In the present case, the applicant has failed to do so. 10. In Lanka Venkateswarlu (D) by L.R.s v. State of A.P. & Ors. AIR 2011 SC 1199 , the Supreme Court has held as under: "26. In the present case, the applicant has failed to do so. 10. In Lanka Venkateswarlu (D) by L.R.s v. State of A.P. & Ors. AIR 2011 SC 1199 , the Supreme Court has held as under: "26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers. 11. Further in Union of India v. Nripen Sarma reported in AIR 2011 SC 1237 , the Supreme Court has held as under: "3......The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under : "We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgment should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition." 4.We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay. 12. In Office of the Chief Post Master General v. Living Media India Ltd. reported in AIR 2012 SC 1506 after noticing the principles of law laid down in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (1987)2 SCC 107 : AIR 1987 SC 1353 , and other judgments, the Supreme Court has held as below: "12.....In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13. The principles of law reproduced hereinabove would squarely apply to the present case. 14. Considering the application from every angle, this Court finds it devoid of merit. The application is, therefore, rejected. Application Rejected.