Commander SRP Group 13 v. Pravinsingh Natubha Jadeja
2019-10-23
G.R.UDHWANI
body2019
DigiLaw.ai
ORDER G.R. Udhwani, J. 1. This civil application seeks condonation of delay of 893 days in preferring the captioned Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'C.P.C') to assail the judgment and decree dated 23.08.2016 rendered in Regular Civil Appeal No. 102 of 2014 by learned 4th Additional District Judge, Rajkot confirming the Judgment and decree dated 01.04.2013 passed by learned 3rd Additional Senior Civil Judge, Rajkot in Special Civil Suit No. 46 of 2013 whereby the order of dismissal passed against the opponent on the charge of his unauthorized absence from duty was set aside. 2. According to the applicant, the appellate proceeding were last attended by the applicant on 05.05.2016 when the final arguments were concluded. It is stated by the learned Assistant Government Pleader that on that day, the judgment was not delivered; accordingly notings on the file was made and ultimately judgment and decree was passed on 23.08.2016. It is stated that applicant could know about the judgment and decree until it received show cause notice dated 11.04.2018 issued by the executing court in the execution petition filed by the opponent and thereafter applied for certified copy on 02.05.2018 which was delivered on the same day. Opinion was sought from the District Government Pleader who opined against further procedure by letter dated 21.05.2018. The opinion was not accepted and then on 13.07.2018, a proposal was sent for filing an appeal. The proposal was pending with the Additional Chief Secretary, Home Department as on 22.01.2019. It appears that main question of delay after explanation in that regard was discussed between the concerned departments and remained pending with the Additional Chief Secretary. On 08.03.2019 reminder was sent to said department and eventually the Director General of Police, Gandhinagar by letter dated 11.04.2019 communicated its decision to prefer an appeal. It is submitted that the delay has occurred on account of administrative procedures. 3. Learned Assistant Government Pleader also submitted that the opponent addressed a letter dated 05.09.2017 claiming the benefits, mentioning that two courts have held in his favour; however without providing the details therefore. 3.1. Learned Assistant Government Pleader has orally produced certain factual details, including those not pleaded. Therefore, for convenience, the dates and events are tabulated in para 5.2 below. 4.
3.1. Learned Assistant Government Pleader has orally produced certain factual details, including those not pleaded. Therefore, for convenience, the dates and events are tabulated in para 5.2 below. 4. The application is opposed by the learned counsel for the opponent on the ground that the delay is inordinate, not properly explained as also no sufficient cause is shown for its condonation. Learned counsel submitted that the full-fledged legal machinery is available with the applicant, who despite letter dated 05.09.2017 pointing out the two Judgments delivered in favour of the opponent, did not bother to inquire about two judgments. It was contended that it is only after the executing notice and executing petition that after the long time and after inordinate delay, the wheels started moving, that too at a snail's speed. It was contended that with full-fledged legal machinery at its disposal, the applicant cannot plead ignorance about the judgment and decree. It was also submitted that even if the applicant is permitted to plead ignorance for the said period; post that period, it took one year for State to take a decision to file an appeal. Learned counsel submitted that even on merits, the opponent has good case and after cumbersome litigation, he has succeeded and he is about to retire in near future and at this stage if the delay is condoned and appeal is considered, a great deal of hardship will be caused to the opponent. It is also contended that after the judgment by the trial court, the opponent has already been reinstated in the year 2013 and it would be harsh for him now to face one more litigation; that too after inordinate delay. Learned counsel relied upon Estate Officer, Haryana Urban Development Authority vs. Gopi Chand Atreja- AIR 2019 SC 1423 and Commissioner of Income Tax Ghaziabad vs. Hapur Pilkhuwa Development Authority- Special Leave Petition (civil) Diary No. (s). 26127 of 2018. 5. From the rival submissions, it would appear that applicant was conscious of the fact that the arguments in the Regular Civil Appeal afore-stated were concluded on 05.05.2016. It thereafter waited for about two years until the service of the notice in execution proceedings upon it. The question is how long the department armed with legal machinery would prefer to wait? was it justified for it to wait for unending period?
It thereafter waited for about two years until the service of the notice in execution proceedings upon it. The question is how long the department armed with legal machinery would prefer to wait? was it justified for it to wait for unending period? or was it required to be vigilant and inquire about the matter periodically; say atleast once in a month? In the opinion of this court the applicant ought to have been vigilant and the ground that judgment was waited is not the proper ground for authority armed with legal machinery; to plead. 5.1. It can be seen from the above discussion that on 05.09.2017 the opponent clearly stated in its letter that two judgments were delivered in his favour. As indicated above, the applicant had attended the appellate proceedings on 05.05.2016 when the arguments were concluded. Thus the applicant was aware of the court proceedings pending against it. The opponent had no obligation to specify the case numbers or details of the case under such circumstances. Applicant could have inquired into the matter with vigilance after it was made clear to it that the judgment is delivered in favour of the opponent in the above letter. Having not been vigilant, in the opinion of this court, the said ground also cannot be countenanced as the proper ground for condonation of delay. 5.2. This civil application is registered on 03.05.2019 i.e. after about three years from the date of the judgment. Since May 2018 i.e. after certified copy was obtained, it took about one year for applicant to procure the legal opinion. The bird eye-view of the relevant events can be tabulated thus: Date Particulars 01/04/13 Judgment and decree passed by the Civil Court. 2014 Regular Civiil Appeal No. 102/2014 05/05/16 Hearing concluded 23/08/16 Judgment in Regular Civil Appeal 05/09/17 Respondent made an application before the Home Department for benefits 11/09/17 Copy received by Home Department 02/01/18 Home Department forwarded the application to DGP 17.02.2018 The DGP forwarded the application to the SRP group 13 19.04.2018 Execution petition filed by the respondent.
2014 Regular Civiil Appeal No. 102/2014 05/05/16 Hearing concluded 23/08/16 Judgment in Regular Civil Appeal 05/09/17 Respondent made an application before the Home Department for benefits 11/09/17 Copy received by Home Department 02/01/18 Home Department forwarded the application to DGP 17.02.2018 The DGP forwarded the application to the SRP group 13 19.04.2018 Execution petition filed by the respondent. Notice of execution petition received by the department 02/05/18 Certified copy to DGP and asked for petition 21.05.2018 The District Government Pleader office gave opinion 13.07.2018 Proposal received by SRP Group 13 and sent it to D.I.G and D.G. Office 10/08/18 D.I.G. Sent to D.G.P 24.11.2018 D.G.P. Office forwarded the proposal to Home Department 15.12.2018 Home Department sent to the legal Department 08/01/19 Legal Department asked for reasons for delay to Home Department 22.01.2019 Home Department sent to SRP 08/03/19 SRP forwarded to D.I.G and D.G 13.03.2019 DIG sent to DGP Direct Home Department 20.03.2019 Home Department sent it to legal Department 30.03.2019 Decision taken 01/05/19 Notice by Hon’ble High Court. 5.3. Thus if the plea that the applicant was not aware of the proceedings until April 2018 when the execution notice was served upon it is accepted; then also, instead of being vigilant, the applicant has taken about a year more to just procure the legal opinion. The delay, in the opinion of this court not sufficiently explained. 6. In Estate Officer, Haryana Urban Development Authority(supra), delay of 1942 days in absence of suitable explanation it was held thus: "19. In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer. 20. In our view, it is a clear case where the appellant HUDA i.e., their officers, who were in charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. In such circumstances, the officers in charge of the case should be made answerable for the lapse on their part and make good the loss suffered by the appellants HUDA. 21.
In such circumstances, the officers in charge of the case should be made answerable for the lapse on their part and make good the loss suffered by the appellants HUDA. 21. A delay of 1942 days (4 years 6 months) in our view, wholly inordinate and the cause pleaded for its condonation is equally unexplained by the appellants. In any case, the explanation given does not constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. It was, therefore rightly not condoned by the High Court and we concur with the finding of the High Court." 7. The observations above referred can be applied to the facts of the case. In above view of the matter the civil application deserves no merits, same fails and is rejected. Rule is discharged.