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Gujarat High Court · body

2017 DIGILAW 1770 (GUJ)

Haresh Manoharlal Sindhi v. Harish Rajkumar Ahuja

2017-11-02

A.J.SHASTRI

body2017
ORDER : A.J. SHASTRI, J. The present Civil Application is filed for seeking condonation of delay of 419 days caused in preferring the main Civil Revision Application. This application was listed for hearing on 01.11.2017, however, since learned advocate representing respondent was absent, the same was not taken up for hearing and kept on 02.11.2017 Today, when the matter is called out, again learned advocate for the respondent has remained absent. However, it has been categorically informed by Mr. N.V. Gandhi, learned advocate appearing for the applicant that, he has already informed the respondent that matter shall be proceeded further. Accordingly, in the second round Civil Application is taken up for hearing. 2. Mr. K.V. Shelat, learned advocate appearing for Mr. N.V Gandhi, learned advocate for the applicant has contended that original ex parte order by the Small Causes Court came to be passed on 30.03.2016 in P.S.R.P Application No. 56 of 2014. Hence, the information regarding the said ex parte order came to be known to the applicant only when the respondent has served copy of caveat application on 03.05.2016, as a result of which immediately the necessary steps have been taken and got the certified copy of order and preferred the appeal before the Appellate Bench of the Small Causes Court under Section 42 of the Act on 13.05.2016 without causing any delay. 3. During the course of the said appeal, it has been revealed and found that appellate proceedings are not tenable as not falling within the purview of Section 42 of the Act, as a result of which pursis came to be submitted at Exh.11 to permit the said appeal to be withdrawn, so as to enable the applicant to submit revision petition before the High Court. The said pursis appears to have been given on 07.07.2017 and thereafter, after submitting the said pursis, the learned judge permitted to withdraw the said proceedings so as to enable the applicant to submit the revision petition before the High Court of Gujarat. After the said process, the applicant has prepared the Civil Revision Application on 20.08.2017 and submitted before the Court on 28.08.2017 and therefore the applicant, under mistaken belief and upon ill-advice, has litigated before the wrong forum. Mr. After the said process, the applicant has prepared the Civil Revision Application on 20.08.2017 and submitted before the Court on 28.08.2017 and therefore the applicant, under mistaken belief and upon ill-advice, has litigated before the wrong forum. Mr. Shelat, learned advocate has contended that there was no mala fide intent of any nature in filing the appeal before the Appellate Bench of the Small Causes Court, however, when at a later point of time it was noticed on account of one decision of High Court of Gujarat, which has been mentioned in the matter, the appeal proceedings sought to be withdrawn so as to prefer proper proceedings before the Competent Court and, therefore, under the bona fide belief the applicant has litigated before the wrong forum and, therefore, delay of 419 days, which has occasioned, cannot be said to be negligence on the part of the applicant Mr. Shelat, learned advocate has contended that by virtue of Section 14 of the Limitation Act, the period, which has passed on in the appeal proceedings filed under Section 42, the said period deserves to be condoned and it has also been contended that the appeal preferred by the applicant was based upon ill-advice and therefore there is no fault of the applicant in preferring such proceedings and therefore considering this situation, the present application has been filed for seeking condonation of delay. 4. Having heard learned advocate for the applicant and having gone through the averments contained in the application, the Court deems it proper to consider the request for condonation of delay which has occurred not on account of no fault of the applicant. It is settled position of law that, in absence of any mala fide intention on the part of the litigant, if on account of some genuine reason the delay has occurred, the same needs to be considered liberally and instead of non-suiting the litigation on the ground of any technicality, the grievance of the litigant deserves to be dealt with on merits. Mr. Shelat, learned advocate has brought to the notice of this Court one decisions of Honourable the Supreme Court rendered in case of (i) Rafiq v. Munshilal reported in (1981) 2 SCC 788 and in case of Collector, Land Acquisition, Anantnag v. Mst. Katiji reported in (1987) 2 SCC 107 . Mr. Shelat, learned advocate has brought to the notice of this Court one decisions of Honourable the Supreme Court rendered in case of (i) Rafiq v. Munshilal reported in (1981) 2 SCC 788 and in case of Collector, Land Acquisition, Anantnag v. Mst. Katiji reported in (1987) 2 SCC 107 . In case of Rafiq v. Munshilal (supra), it has been propounded that on account of fault of lawyer, litigant may not be allowed to suffer and, therefore, considering this consistent proposition of law on the issue of condonation of delay, it appears that the case of the applicant for seeking condonation of delay deserves to be accepted. 5. In view of aforesaid fact and in view of aforesaid proposition, the delay, which has occurred of 149 days, is required to be condoned in the interest of justice and accordingly present application is accepted and the same is allowed. The main proceedings to be placed for admission hearing on 22.11.2017.