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2022 DIGILAW 52 (GUJ)

Dharubhai Maknabhai Makwana v. Kesiben Chuniyabhai Makwana

2022-01-11

A.J.SHASTRI, ARAVIND KUMAR

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JUDGMENT : A.J. Shastri, J. 1. The present proceedings have arisen out of order passed by the learned Single Judge dated 09.10.2019 passed in Special Civil Application No. 15104 of 2014. It appears from the record that for the purpose of seeking condonation of delay of five (5) days, Civil Application No. 1872 of 2021 has been submitted to condone the delay of five (5) days, which has occurred in preferring Letters Patent Appeal and since the said application having not been stoutly opposed, we deem it proper to allow this application and with the consent and request of the learned advocates appearing for the parties, the main Letters Patent Appeal is taken up for hearing. 1.1. Present appeal under Clause 15 of the Letters Patent is filed assailing the judgment and order passed by the learned Single Judge dated 09.10.2019 in Special Civil Application No. 15104 of 2014. 2. The background of facts in brief are that land bearing Revenue Survey No. 106/2 admeasuring 2 Acres 02 Gunthas of Mouje Dungri, Taluka Jhalod, District Dahod (hereinafter referred to as "the land in question") was originally in the name of Chuniyabhai Zala. Respondent nos. 1 to 3 of the original petition happened to be the daughters of Chuniyabhai, whereas respondent no. 4 is the widow of Chuniyabhai Zala. On 10.09.1980 by way of "Kachha Dastavage", the said land was sold to respondent no. 5 and for seeking regularization of the said sale, respondent no. 5 submitted an application on 16.11.1990 to the Deputy Collector. Since the Deputy Collector found that the sale was between two Adivasis, the said sale came to be regularized and against the said order, petitioner no. 1 preferred an application raising grievance before the Collector against the grant of regularization of sale, which came to be rejected after due adjudication, vide judgment and order dated 24.09.1992. Feeling aggrieved by the same, the original petitioners preferred Revision Application before the Special Secretary Revenue Department (SSRD) and SSRD after hearing the parties, was pleased to pass an order on 27.12.1996, by virtue of which the revision application came to be rejected and against the said impugned orders passed by the authorities below, the petitioners have preferred Special Civil Application No. 15104 of 2019. 2.1. 2.1. After hearing the learned advocates appearing for the respective parties and after considering the detailed submissions and the background of facts involved in the controversy, the learned Single Judge found no case in favour of the petitioners as a result of which, the petition came to be dismissed vide judgment and order dated 09.10.2019, which is the subject matter of present Letters Patent Appeal before us. 3. Learned advocate Mr. Shethna, appearing for the petitioners has submitted that the learned Single Judge while passing the impugned order has adopted too technical approach and instead of examining the case on merits, in substance, the petition was not entertained on the ground of delay and as such the exercise of discretion by the learned Single Judge requires to be interfered with. Learned advocate Mr. Shethna has further submitted that additional consideration for rejecting the petition was non joinder of the party which is a rectifiable error and petitioner ought to have been extended an opportunity, to rectify the error and as such, qua that since no opportunity is extended by the learned Single Judge to rectify the mistake, the order impugned deserves to be interfered with. 3.1. Additionally, learned advocate Mr. Shethna has submitted that the delay which has been a ground for dismissal of the petition was merely notional delay, and learned Single Judge ought to have appreciated that the issue of delay would arise if any cause arises related to it and no such cause so far had arisen for the petitioners at the relevant point of time. Hence, petition ought to not to have been dismissed on that ground and as such, the ground which has been taken into consideration is of no significance. Apart from that learned advocate Mr. Shethna has submitted that simply because civil suits were filed by the respective parties, would not be a ground to dismiss the petition as revenue entries have also got its own significance. Learned advocate Mr. Shethna has submitted that the established principles of law laid down by the Hon'ble Apex Court on the issue of delay ought to have been considered by the learned Single Judge especially in view of the fact that against the dismissal of the suits substantive Second Appeal No. 426 of 2018 has been filed and it is very much pending before this Court. As a result of this, the order impugned deserves to be set aside. By pointing out chronology of facts as mentioned in the memorandum of Letters Patent Appeal, an attempt is made by the learned advocate for the petitioners to assail the order and has submitted that both the authorities below have committed an error in exercising discretion which ought to have been examined at length by the learned Single Judge and having not done so, the order impugned requires to be quashed and set aside. To come out from the issue of non joinder of the party, learned advocate Mr. Shethna has drawn attention to Civil Application for joining of parties being Civil Application No. 2 of 2020 and has submitted that due consideration be given to this application as well and as such, by referring to submissions which have been canvassed before the learned Single Judge, a prayer is made to set aside the impugned order and grant the reliefs as prayed for in the Letters Patent Appeal. No further submissions have been made. 4. Having heard the learned advocate for the petitioners and having gone through the detailed order which has been passed by the learned Single Judge, we have found that the order passed by the learned Single Judge is after due consideration of the submissions made by the learned advocate for the original petitioners and after examining the contents of the petition as well as the decisions which have been pointed out, and a specific conclusion is arrived at that there is gross and inordinate delay of approximately 23 years in fling the petition. It has also been taken into consideration that petitioners had filed Civil Suit in the year 1991 to establish their right over the land in question and yet another suit was also filed in the year 2016 before the jurisdictional civil court and it has also been found specifically by the learned Single Judge that the order of SSRD, which came to be passed in the year 1999, was never the subject matter of challenge within a reasonable period of time. The learned Single Judge also found that there is no justifiable explanation given as to why such enormous delay has taken place in assailing the order passed by the authority by fling petition only in the year 2019. The learned Single Judge also found that there is no justifiable explanation given as to why such enormous delay has taken place in assailing the order passed by the authority by fling petition only in the year 2019. Hence, in the absence of any cogent explanation having been offered the learned Single Judge has rightly refused to exercise the extra-ordinary jurisdiction vested under Article 226 of Constitution of discretion. 5. In addition, it has also been found and noticed by the learned Single Judge that petitioners have failed to point out from the records that the settlement was arrived at between the parties after the order of SSRD, hence, the challenge to the order of SSRD appears to be an afterthought and this fact having not been brought to the notice, the learned Single Judge has refused to exercise the discretion in exercise of extra ordinary equitable jurisdiction under Article 226 of the Constitution of India. 6. In addition to what has been examined by the learned Single Judge while dismissing the petition, we have also noticed that what has been challenged in the original petition is the orders passed by the authorities below way back in 1992 as well in the year 1996 and there is not even fair explanation offered which can be said to be justifiable explanation for bringing the petition after almost a period of 23 years. We see no justifiable reason to interfere with the order passed by the learned Single Judge in this background of facts. We have also noticed that there is no irregularity of any nature in not exercising the extra ordinary jurisdiction by the learned Single Judge and so far as civil application for impleading others as parties to these proceedings are concerned, no such attempt to persuade the same is made before the learned Single Judge. Hence, viewed from any corner, we are not convinced that impugned order requires interference. 7. The law is well established by catena of decisions on exercise of extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India which the learned Single Judge have clearly kept in mind while dismissing the petition. Hence, on the basis of very same material, we find no justifiable circumstance to interfere with the order passed by the learned Single Judge. Hence, on the basis of very same material, we find no justifiable circumstance to interfere with the order passed by the learned Single Judge. The reasons which are assigned by the learned Single Judge in paragraph 19 are sufficient enough to dismiss the Letters Patent Appeal and hence, we are convinced that no error has crept either on facts or in law while passing the impugned order by the learned Single Judge. 8. At this stage, we may consider the scope of Letters Patent Appeal as propounded by the Hon'ble Apex Court and few observations contained in paragraph 5 of the decision reported in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340 , since we have considered, we deem it proper to reproduce them hereunder:- "5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief." 8.1. The aforesaid proposition is reiterated by the Hon'ble Apex Court even in the recent decision in the case of R. Ramchandra Reddy v. State of Telangana & Ors., reported in 2020 (16) SCC 478 and para 44 is the relevant observations which we deem it proper to quote and it reads thus:- "44. Further, in Narendra & Co. (P) Ltd. v. Workmen, while considering the scope of intra-court appeal, this Court has held that, unless the Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same." 9. Further, in Narendra & Co. (P) Ltd. v. Workmen, while considering the scope of intra-court appeal, this Court has held that, unless the Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same." 9. In view of the aforesaid circumstances which are prevailing on record and in view of the proposition laid down by the Hon'ble Apex Court, as stated above, we are of the considered view that order passed by the learned Single Judge does not suffer from any vice of perversity or defect and as such, we are not inclined to substitute said view in the absence of any distinguishable circumstance. As a result, the Letters Patent Appeal being devoid of merit, same stands dismissed. Connected civil application in view of peculiar background of facts stated above does not deserve to be entertained and accordingly stands dismissed. All pending applications stand consigned to records.