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2014 DIGILAW 124 (GUJ)

Kusumben Indersinh Dhupia v. Sudhaben Biharilalji

2014-01-28

K.M.THAKER

body2014
ORDER : K.M. Thaker, J. Heard learned advocates for the contesting parties. At the request of the learned advocate for the petitioner and with consent of learned advocates for the respondents, the matter is taken up for hearing and final decision and is heard finally. 2. In present petition, the petitioner has prayed, inter alia, that: "6(a) Your Lordships may be pleased to issue a writ of certiorari and/or any other appropriate writ order or direction quashing and setting aside the order dated 21.7.2011, below Exh.1 in Restoration Application 92 of 2008 passed by the 5th Addl. Sr. Civil Judge & JMFC, Surat and be pleased to allow the said restoration application No.92 of 2008." 3. The petitioner is aggrieved by the order dated 21.7.2011 whereby the learned trial Court has rejected the petitioner's application to restore the proceedings of Regular Civil Suit No.217 of 1994 which also was dismissed on the ground of non-prosecution. 4. In order to consider the grievance made by the petitioner against the impugned order, it is appropriate and necessary to take into account certain facts, events and dates. 4.1 The petitioner is original plaintiff in Regular Civil Suit No.217 of 1994. 4.2 In 1994, the petitioner herein preferred a suit which came to be registered as Regular Civil Suit No.217 of 1994, wherein the petitioner - plaintiff prayed for declaration and permanent injunction in respect of the suit property viz. Plot No.16E, admeasuring 250 square yards on Revenue Survey No.6265 paiki of village Althan, Surat. 4.3 The said suit remained pending for many years. 4.4 Ultimately, on ground of non-prosecution, the suit came to be dismissed for non-prosecution in November 2008, i.e. after about 14 years. 4.5 The petitioner - plaintiff has claimed that in December 2008, the petitioner - plaintiff filed application seeking restoration of suit proceedings. 4.6 The said application also remained pending for considerable time, i.e. for about three years and the proceedings had to be adjourned from time to time and ultimately after waiting for about 3 years, the learned trial Court was constrained to dismiss even the said application also on ground of non-prosecution vide order dated 21.7.2011. 4.7 Aggrieved by the said order, the petitioner has preferred present petition. 5. Mr. Thakkar, learned advocate for the petitioner submitted that the learned trial Court has committed grave error in dismissing the petitioner's application seeking restoration of the suit proceedings. 4.7 Aggrieved by the said order, the petitioner has preferred present petition. 5. Mr. Thakkar, learned advocate for the petitioner submitted that the learned trial Court has committed grave error in dismissing the petitioner's application seeking restoration of the suit proceedings. He submitted that in the first instance, the learned trial Court ought not have dismissed the suit for non-prosecution and in any case, when the petitioner preferred application seeking restoration of the proceedings, the said application ought to have been allowed and should not have been rejected. Learned advocate for the petitioner submitted that the learned trial Court has committed serious error in rejecting the petitioner's application. So as to support his submission, learned advocate for the petitioner relied on the decisions in the cases of Lajwanti v. Union of India, reported in (2000) 10 SCC 345 ; Rashtriya Mazdoor Union v. Hindustan Petroleum Corporation Ltd., reported in 2005 (2) GLH 612 ; Ram Kumar Gupta v. Har Prasad, reported in AIR 2010 SC 1159 ; and Shyamal Ghosh v. Anupama Ghosh, reported in 2010 (0) GLHELSC 48434. 6. The petition is opposed by Mr. Mehta, learned advocate for respondent No.1. He submitted that since the petitioner was not remaining present, the suit remained pending for almost 14 years and ultimately the Court was left with no option but to dismiss the suit for non prosecution. He also submitted that even during the hearing of the application seeking restoration of the proceedings, the petitioner applicant did not remain present and the application remained pending for almost 3 years and ultimately the Court dismissed the said application as well for non-prosecution. He submitted that in the facts and circumstances of the case, the order passed by the learned trial Court cannot be said to be arbitrary or unjust and do not call for any interference at this stage. 7. Heard Mr.Thakkar, learned advocate for the petitioner and considered his submissions. I have also considered the material available on record. 8. It has emerged from the record that the petitioner, who is the original plaintiff, filed the suit in question in 1994. 9. Until 2008, any progress in the suit was not made and the proceedings were being prolonged and adjourned from time to time. 10. I have also considered the material available on record. 8. It has emerged from the record that the petitioner, who is the original plaintiff, filed the suit in question in 1994. 9. Until 2008, any progress in the suit was not made and the proceedings were being prolonged and adjourned from time to time. 10. The Court framed the issues in 2008 but even thereafter, according to the observations by the learned trial Court, the proceedings were not attended by the petitioner and therefore, the suit was being rotated on the cause list without any real or substantial progress. 11. Ultimately, after taking into account absence of the plaintiff/learned advocate for the plaintiff, the learned trial Court dismissed the suit on ground of non-prosecution, vide order dated 6.11.2008. 12. Subsequently, the petitioner - plaintiff filed an application on 4.12.2008 with request that the order dismissing the suit may be recalled and the proceedings of the suit may be restored. 13. After filing the said application, the hearing, according to the observations by the learned Court in the impugned orders, was not attended by the applicant - plaintiff (i.e. present petitioner) and again the proceedings of the said miscellaneous application continued to be adjourned from time to time on account of absence of the applicant - plaintiff. The said application remained pending for 3 years and ultimately, the Court was left with no option and was constrained to dismiss the application for non-prosecution vide impugned order dated 21.7.2011. 14. In the order, the learned trial Court has observed and recorded that after having filed the application, the applicant did not conduct the application on merits and due to continuous absence of the applicant/learned advocate for the applicant, the learned Court reached the conclusion that the applicant, i.e. present petitioner is not interested in conducting and prosecuting the application on merits. 15. Having reached such conclusion, the learned trial Court dismissed the application for non-prosecution. 16. Against the said order, the petitioner has taken out present petition. 17. It is pertinent to mention at this stage that even present petition is pending in this Court since October 2011. 18. From the above mentioned details, it emerges that for some reason, the petitioner merely intends to keep the dispute alive. However, the petitioner does not appear to be interested in conducting and prosecuting the proceedings on merits. 19. 17. It is pertinent to mention at this stage that even present petition is pending in this Court since October 2011. 18. From the above mentioned details, it emerges that for some reason, the petitioner merely intends to keep the dispute alive. However, the petitioner does not appear to be interested in conducting and prosecuting the proceedings on merits. 19. Initially for 14 years, the suit remained pending - without being conducted on merits - before the learned trial Court. 20. Thereafter, again, without being conducted on merits and due to - as observed by the learned trial Court - continuous absence of learned advocate, the application remained pending for 3 years before the learned trial Court. Subsequently, present petition also has remained pending since October 2011. 21. The learned trial Court has specifically recorded in the impugned order dated 21.7.2011 that the applicant - plaintiff/plaintiff's advocate is consistently and continuously remaining absent and is not prosecuting the application and therefore, it appears that he is not interested in prosecuting the application. 22. Under the circumstances, when the learned trial Court has passed the order rejecting the application on ground of non-prosecution due to plaintiff's action of neglecting the proceedings, any fault cannot be found with the said order. 23. So far as the decisions relied on by the learned advocate for the petitioner are concerned, in view of the facts of the present case - which are materially different from the facts in the cited decisions the said decisions do not help the petitioner in justifying the request made in the petition. 24. In the facts and circumstances of the case, the Court is not inclined to exercise discretionary jurisdiction so as to interfere with the order passed by the learned trial Court. This Court is of the view that in light of the facts and circumstances of the case which has emerged from the record, the order cannot be said to be arbitrary or unreasonable or perverse. 25. A litigant is expected to be vigilant and should prosecute the suit without causing unnecessary and avoidable delay and without being indifferent to the proceedings and when such circumstances arise, he cannot escape the responsibility by throwing entire blame on the shoulders of the advocate, after himself being too casual and indifferent towards the proceedings. 26. 25. A litigant is expected to be vigilant and should prosecute the suit without causing unnecessary and avoidable delay and without being indifferent to the proceedings and when such circumstances arise, he cannot escape the responsibility by throwing entire blame on the shoulders of the advocate, after himself being too casual and indifferent towards the proceedings. 26. In present case, the petitioner/learned advocate for the petitioner has never shown the desire and readiness to prosecute and conduct the proceedings on merits. 27. The facts of the case and more particularly the chronology of events which occurred during the pendency of the suit as well as during the proceedings of the restoration application, clearly demonstrate the petitioner's negligence and apathy towards conducting and prosecuting, at the first instance, the suit and subsequently the restoration application and thereafter present petition as well. The observations by the learned trial Court in the order below restoration application (to the effect that due to continuous absence of applicant / plaintiff, the order to dismiss the application for non-prosecution) is significant and records the indifference towards the proceedings by the petitioner applicant. The petitioner, it appears from the material on record, never bothered to keep track of the proceedings and never cared to inquire about the stage and progress of the proceedings of the suit and thereafter the restoration application. 28. Such proceedings, i.e. the proceedings which are kept alive by the contesting parties without conducting the case on merits and then rounds of litigations are carried out after the proceedings are disposed of on account of non-prosecution to keep, by seeking recall of such order and for restoration of the proceedings, the original proceedings alive; are huge burden on the system and such proceedings which are not conducted and prosecuted with sincerity, diligence and without seeking avoidable and unnecessary adjournments, are one of the major reasons for developing cracks in the system and they are the cause for and they contribute to, delay in other cases since substantial time is consumed in deciding such applications, e.g. application for condonation of delay, application for seeking restoration of the proceedings, appeals/petitions challenging orders passed on such applications, etc. 29. In such cases and circumstances, the concerned party cannot escape his/her responsibility by throwing entire blame on advocate's shoulders or on some extraneous and non germane reasons or circumstances. 30. 29. In such cases and circumstances, the concerned party cannot escape his/her responsibility by throwing entire blame on advocate's shoulders or on some extraneous and non germane reasons or circumstances. 30. The case on hand is one of such cases, wherein any satisfactory and convincing reasons, supported by cogent material which would satisfactorily and convincingly explain the reasons and circumstances as to why the suit was not prosecuted and conducted on merits for almost 14 years and subsequently the hearing of the restoration application was also not attended regularly which resulted into prolongation the said application for almost 3 years, are not offered by the petitioner. 31. In that view of the matter, the Court is not inclined to entertain and accept present petition. 32. Learned advocate for the petitioner relied on the decision in the case of Rashtriya Mazdoor Union v. Hindustan Petroleum Corporation Ltd., reported in 2005 (2) GLH 612 . In the said case, the Union had challenged an award dated 10.10.1991 passed by the learned Industrial Tribunal. The petition challenging the award was admitted by the Court for final hearing in February 1992. On 10.2.2004, learned counsel for the workmen had transferred the case to another advocate with request to appear on proxy, however, the said other learned advocate did not attend the hearing on 12.2.2004. It appears that the hearing was adjourned and ultimately on 19.2.2004, the petition was dismissed for non-prosecution. The facts in the background are recorded by the Court in paragraph No.6, which read thus: "6. In the application, averments have been made by the applicant that the learned advocate Mr. P.K. Handa is coming from the out station and was not feeling well and he was unable to file leave note and therefore, papers were handed over to the learned advocate Mr. Pathak to appear in the matter but he has not filed appearance and, therefore, his name was not shown in the board and due to that reason, the matter was dismissed for default and that may be a lapse on the part of the advocate. Further, the applicant has averred in para 4 of the application that these workmen were working since sixteen years with the respondent and if the stay is not granted, then, they will suffer great injustice as they were not aware about order dated 19.12.2004, therefore, they have not filed restoration application immediately. Further, the applicant has averred in para 4 of the application that these workmen were working since sixteen years with the respondent and if the stay is not granted, then, they will suffer great injustice as they were not aware about order dated 19.12.2004, therefore, they have not filed restoration application immediately. According to the applicant, they came to know about the said order when the respondents were going to terminate the services of the workmen concerned and immediately they approached this court by filing the present application for restoration. Therefore, in para 5 of the application, prayer for restoration of the matter has been made and it has been prayed for fixing the petition for final hearing while dispensing with the affidavit. This application for restoration was filed by the learned advocate Mr. Handa." 33. Having regard to the facts and circumstances of that case, the Court allowed the application seeking condonation of delay and restoration of the proceedings. The said factual background gives out that the facts of the cited decision are different from the facts of the case on hand. In present case, even the application seeking restoration of the proceedings was not prosecuted and conducted on merits for 3 years and then the learned Court was constrained to dismiss even the said restoration application also on ground of non-prosecution. 34. Learned advocate for the petitioner also relied on an order by the Hon'ble Apex Court in the case of Lajwanti (supra), wherein the Hon'ble Apex Court has observed, inter alia, that: "2. An order was passed by the Delhi High Court on 9.7.1997. It was passed ex parte against the appellant. An application for recall of that order was made. The application stated that on the relevant day the causelist did not mention the name of the counsel for the appellant. The High Court declined to recall the order saying that it saw no ground to restore and rehear the petition which had been decided on merits. 3. The name of the appellant's advocate not having been shown in the causelist for the relevant day against the writ petition concerned, there was sufficient cause, in our view, to recall the order and hear the appellant's counsel on the writ petition. This is the order that we propose to pass. 3. The name of the appellant's advocate not having been shown in the causelist for the relevant day against the writ petition concerned, there was sufficient cause, in our view, to recall the order and hear the appellant's counsel on the writ petition. This is the order that we propose to pass. Having regard to the lapse of time, the restored writ petition shall be heard and disposed of within four weeks of receipt of this order. It shall be open to the respondents to point out the orders passed on similar writ petitions by the Delhi High Court and confirmed by this Court. 4. The appeal is allowed and the order under appeal is set aside. The writ petition (Civil Writ Petition No.184 of 1987) is restored to the file of the High Court to be heard and disposed of on merits as aforestated. Pending further orders by the High Court, the status quo as to possession as of 9.2.1998 shall be maintained." 34.1 The facts of the cited decision give out that on the date of hearing of the case, the name of the learned advocate of the concerned party was not mentioned/reflected in the daily cause list and therefore, he could not attend the hearing. Consequently, the matter came to be dismissed. In the facts of the said decision, the Hon'ble Apex Court considered that learned advocate had not ignored the hearing and had not remained absent at the time of hearing despite knowledge. In present case, the facts are materially and strikingly different inasmuch as almost three years, the proceedings were not conducted before the case came to be dismissed for non-prosecution. It was not even the case of the applicant - petitioner before the learned trial Court that on particular date he was not aware that the case was listed for hearing. The said defence could not have been available to him because it would not explain the continuous absence at the time of hearing for three years inasmuch as the learned trial Court has observed in the order that the applicant - applicant's advocate continuously remained absent. Therefore, the said decision does not help the petitioner. 35. The said defence could not have been available to him because it would not explain the continuous absence at the time of hearing for three years inasmuch as the learned trial Court has observed in the order that the applicant - applicant's advocate continuously remained absent. Therefore, the said decision does not help the petitioner. 35. Likewise, in the decision in the case of Ram Kumar Gupta v. Har Prasad, reported in (2010) 1 SCC 391 : AIR 2010 SC 1159 , which is relied on by learned advocate for the petitioner, the facts are different than the facts in present case. In the said decision, Hon'ble Apex Court has recapitulated the factual background thus: "3. The facts of the case are as follows : The deceased mother of the appellants Smt. Devki Devi was dispossessed from her shop on account of deceptive acts of her Manager, namely, Pooranlal Shah who was engaged by her to run the business of confectionery (Halwai) after the death of her father. The said Manager got an ex parte order for declaring vacancy under Section 16(1) of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No.13 of 1972) and thereafter an ex parte order for allotment of shop in question in his favour. The said writ petition was admitted by the High Court of Allahabad. Subsequently, on the creation of State of Uttarakhand, the said writ petition was transferred to the High Court of Uttarakhand at Nainital and was renumbered as W.P.(S)No.7361 of 2001. An application for substitution of the deceased Smt. Devki Devi was filed which was allowed by an order dated 17th of December, 2007. The appellants were thus substituted in place of the deceased Smt. Devki Devi in the pending writ petition. However, by an order dated 28th of December, 2007, the High Court dismissed the writ petition for non-prosecution. For restoration of the writ petition dismissed for non-prosecution, an application was filed by the appellants through their learned counsel Shri Bindesh Kumar Gupta. Since Sh. Gupta did not appear at the time the said application for restoration was listed for hearing i.e. on 26th of March, 2008, the said application for restoration was also rejected by a learned Judge of the High Court for non-prosecution. Since Sh. Gupta did not appear at the time the said application for restoration was listed for hearing i.e. on 26th of March, 2008, the said application for restoration was also rejected by a learned Judge of the High Court for non-prosecution. Sometime in the month of September, 2008, a second application for restoration of the writ petition was filed by the appellants saying that since Sh. Gupta was appointed as the Additional Advocate General of the State, he could not appear when the writ petition was taken up for hearing. The High Court by the order dated 3rd of October, 2008 dismissed the second application for restoration on the ground of delay and laches without passing a speaking and reasoned order...." 36. In the said decision, Hon'ble Apex Court has further observed that: "The case that was made out by the appellants for restoration of the writ petition was that the learned counsel for the appellants Sh. Gupta could not appear before the learned Judge of the High Court as at that point of time, he was designated as Additional Advocate General of the State and for that reason, it was not possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants could not be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to contest the same on merits...." The abovequoted observations go to show that the decision is passed in light of the facts of the said case and therefore would not help the petitioner to carry his case further. In the cited decision, the reasons assigned for not appearing at the time of hearing satisfied the Hon'ble Court, whereas in present case any satisfactory and convincing reason is not offered for not remaining present at the time of hearing of the suit and then during the proceedings of the restoration application. 37. In the decision in the case of Shyamal Ghosh v. Anupama Ghosh, reported in (2010) 4 SCC 96, Hon'ble Court has observed that: "4. 37. In the decision in the case of Shyamal Ghosh v. Anupama Ghosh, reported in (2010) 4 SCC 96, Hon'ble Court has observed that: "4. The brief facts, which are necessary to dispose of the appeal, are recapitulated as under: The suit was dismissed in default because of the nonappearance of the counsel. The application for restoration of the same was moved and the Court, after imposing the cost, restored the suit. Against the said order, the respondents preferred a revision petition before the Calcutta High Court. The Calcutta High Court, in its limited jurisdiction, under Section 115 of the Code of Civil Procedure, 1908, has set aside the order by which the Trial Court allowed the application. On consideration of the totality of the facts and circumstances of the case, we are clearly of the view that the High Court ought not to have interfered against the order of the Trial Court allowing the application for restoration. Consequently, the impugned judgment is set aside. To avoid the delay in the matter, the parties are directed to appear before the Trial Court on 24th May, 2010. The Trial Court is requested to dispose of the suit as expeditiously as possible. 5. The civil appeal is, accordingly, allowed. 6. In the facts and circumstances of the case, we direct the appellants to pay costs to the respondents within four weeks, which is quantified at Rupees ten thousand." In light of the facts of the present case which are discussed hereinabove earlier, the said decision which is passed in light of facts of the cited case and more particularly in light of the fact that the restoration application was diligently prosecuted and was allowed by the learned trial Court, Hon'ble Apex Court found that the High Court ought not have interfered with such discretion exercised by the learned trial Court, whereas, in present case, the learned trial Court was left with no option and was constrained to dismiss the restoration application because even the said application was not being attended and prosecuted by the petitioner and it remained pending for 3 years. 38. The learned trial Court has recorded that learned advocate continuously remained absent. In view of the facts of the case, this Court is of the view that the decision relied on by the petitioner does not carry his submission and does not support his case. 39. 38. The learned trial Court has recorded that learned advocate continuously remained absent. In view of the facts of the case, this Court is of the view that the decision relied on by the petitioner does not carry his submission and does not support his case. 39. The Court is conscious that the litigant, ordinarily, does not gain anything by not conducting the case and/or by delaying the proceedings of his case. The Court is also conscious that instead of rejecting the request to condone delay or reject the request for restoration of the proceedings dismissed for non-prosecution, it is better to let the case be decided on merits. 40. However, each case has its own set of facts and amongst the maze of cases there are which either exfacie, or upon little scratching of the surface, bring out facts which demonstrate negligence or apathy or indifference of the concerned party. 41. In such cases, the Court would be reluctant to follow, rather would not be justified in following, the course which the Court ordinarily adopts, i.e. to decide the case rather than dismiss the application. 42. In view of this Court, present case is one such case. Therefore, I am not inclined to exercise discretion and to accept and allow the petition. 43. Under the circumstances, any fault cannot be found with the impugned order and the learned advocate for the petitioner has failed to make out any ground to interfere with the impugned order. 44. The petition fails and is not accepted. 45. Accordingly, the petition stands dismissed. Petition dismissed.