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2023 DIGILAW 792 (GUJ)

Baluben Mashruji v. Sushilaben N Batra

2023-07-04

ILESH J.VORA

body2023
ORDER : 1. This petition under Article 227 of the Constitution of India assails a legality and correctness of the order dated 21.06.2014 passed below Exh.1 in delay condone application no.238 of 2012 by which the Appellate Bench of Small Causes Court, Ahmedabad, was pleased to reject the said delay condone application and did not satisfy with the reasons, preventing the petitioner for not preferring the application for setting aside the ex-parte decree in a prescribed time limit. 2. This Court has heard learned counsels Mr.Viral Shah and K.V. Shelat for the respective parties. 3. Facts and circumstances giving rise to file present petition are that the respondent plaintiff filed a HRP Suit No.1136 of 1994, in the Court of Small Causes Court, Ahmedabad, for possession of the suit property on the ground that tenant Baluben Masruji – original defendant was arrears on rent and she acquired suitable alternative accommodation. The defendant tenant had contested the suit by filing her written statement at Exh.30. After considering the pleadings, the Court-below framed issues at Exh.50. During the suit proceedings, the plaintiff entered into witness box on 11.07.2001 and after completion of preliminary cross-examination of the plaintiff by advocate of tenant defendant, he sought adjournment so as to enable him to obtain necessary instructions and accordingly, the matter was adjourned for further cross examination on 20.07.2001. Again on that day, the defendant’s advocate applied for time and the matter was adjourned on 07.08.2001. On 07.08.2001, when the matter was taken, learned advocate for the defendant filed “no instructions pursis”. In these circumstances, the Court-below closed the right of the defendant to cross-examine the plaintiff and the matter was adjourned for further proceedings on 16.08.2001. On 16.08.2001, the plaintiff closed his evidence by passing pursis at Exh.37 and case was adjourned on 03.09.2001 for recording the evidence of defendant side. On 03.09.2001, counsel for the defendant submitted the pursis intending his withdrawal from the case along with letter of intimation sent to the petitioner defendant through RPAD and acknowledgment thereof. The case was proceeded further ex-parte. The suit was decreed by the Court-below vide its judgment and decree dated 12.09.2001. The defendant tenant directed to handover the vacate and peaceful possession of the suit premises to the plaintiff on or before 31.12.2001. The case was proceeded further ex-parte. The suit was decreed by the Court-below vide its judgment and decree dated 12.09.2001. The defendant tenant directed to handover the vacate and peaceful possession of the suit premises to the plaintiff on or before 31.12.2001. In the aforesaid facts, in order to get fruits of the decree, the execution petition no.54 of 2012, filed by the respondent plaintiff and service of notice was served upon the tenant defendant. 4. The tenant Baluben Masruji, after receiving the execution petition, came to know about the decree for eviction and accordingly, after getting certified copies of the judgment and decree filed an appeal, along with the delay condone application no.238 of 2012. In the first round of litigation, the said application came to be rejected by the Court-below vide its order dated 20.09.2012 and the same was challenged by filing Special Civil Application before this Court. The matter was remanded back to the Court-below to decide the delay condone application afresh. The Appellate Division Bench vide its order dated 21.06.2014, did not agree with the explanation in causing the delay of more than 11 years and accordingly, the application came to be rejected. 5. Being aggrieved with the aforesaid order, the original defendant Baluben preferred present petition, invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India. During the pendency of this petition, original tenant and her husband passed away. The petitioners are the legal representatives of the original tenant. 6. Mr.Viral Shah, learned counsel appearing for and on behalf of the petitioners, has raised the contentions that the impugned order suffers from erroneous exercise of jurisdiction which is apparent on the face of record and the same deserves to be quashed and set aside; that the deceased tenant was unaware about the ex-parte proceedings of the suit as after submissions of no instructions pursis by the advocate on record, no notice was served upon the tenant nor the concerned advocate intimated about the next date of the suit proceedings, and therefore, the tenant was under impression that suit is pending for further proceedings; that the ex-parte decree was passed on 12.09.2001, whereas the execution proceedings being initiated on 31.03.2012 i.e. after 11 years, the decree holder set quit which shows that till service of notice of the execution petition, the tenant was unaware about the passing of the decree. That the tenant land lady was also suffering from age related illness and at relevant time, she was about 78 years old. That after receiving the notice of the execution proceedings, she had immediately proceeded to challenge the ex-parte decree and therefore, there was no delay, as period of limitation commencing from the date of knowledge of the order under-challenge. 7. In the aforesaid facts, learned counsel Mr.Shah has submitted that the Court-below failed to exercise its jurisdiction vested on it and order is passed without considering the settled principle of law on the aspect of delay condone. That it is not length of the delay, but sufficiency of the cause which matters. In the aforestated reasons, there was no fault or negligence or inaction on the part of the deceased tenant as she was unaware about the passing of the decree, and therefore, refusing to condone the delay can result into meritorious matter being thrown out at the very threshold, as the decree was passed behind the back of the tenant and the Court-below failed to appreciate the fact that the ex-parte decree would cause prejudice to the right of the tenant and considering the facts and circumstances of present case, the tenant should be given an opportunity to contest the ex-parte decree on merits. 8. In view of the contentions raised hereinabove, learned counsel Mr.Viral Shah has submitted that there is jurisdictional error committed by the Court-below and though there is a sufficient material to substantiate that there was a sufficient reason for the delay in filing the appeal, the Court-below adopting hyper technical approach, refused to condone the delay. Thus, therefore, he prays that this is a fit case to exercise supervisory jurisdiction under Article 227 of the Constitution of India and the impugned order may be quashed and set aside. 9. On the other hand, Mr.K.V. Shelat, learned counsel appearing for and on behalf of the respondent – original plaintiff has submitted that the impugned order does not suffer from any infirmity so as to interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 9. On the other hand, Mr.K.V. Shelat, learned counsel appearing for and on behalf of the respondent – original plaintiff has submitted that the impugned order does not suffer from any infirmity so as to interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. He would further submit that before the Trial Court, counsel appearing for the tenant sought three adjournments for cross-examination of the respondent – plaintiff and the same was liberally granted by the Court and lastly, advocate of the tenant sent RPAD letter, informing her about the stage of the suit and requested her to contact him immediately, so that he can get necessary instructions to cross-examination of the plaintiff, but some how reasons best known to the tenant, despite of due service of the notice, sent by her advocate, she chosen to remain absent before the Court nor she deemed it proper to contact her advocate, and therefore, advocate on record having no option, but to file withdrawal appearance and accordingly, he was retired from the case by filing no instructions pursis. Thus, therefore, the Court-below had granted sufficient opportunity to the tenant to defend the case, but despite her knowledge about the pendency of the suit, she slept over her right and deliberately, she did not contest the suit and therefore, considering the conduct of the tenant defendant shows that she was throughout remained negligent and was inactive in pursuing the legal proceedings. Thus, for a period of 11 years, the tenant defendant did not take care about the pendency of the suit proceedings and after receiving the notice of the execution petition, she all of sudden raised the issue that she was not aware about the proceedings and having some old age illness, she could not defend the proceedings, that explanation is not satisfactory at all for considering of condoning the delay and when she was guilty undue delay and latches in pursuing the remedy, the Court-below has rightly come to a conclusion that the delay is inordinate delay and the party was not reasonably diligent in pursuing the remedy and therefore, the Court has rightly refused to accept the explanation which is not reasonable and satisfactory for condonation of delay in preferring the appeal against the ex-parte decree. 10. 10. In support of the aforesaid submissions, learned counsel has relied on the judgment of the Apex Court in the case of Basawaraj and another Vs. Special Land Acquisition Officer [ (2013) 14 SCC 81 ] to contend that when a party is found to be negligent or for want of bonafide on his part or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay and no Court could be justified in condoning such and inordinate delay by imposing any condition whatsoever. 11. In light of the settled proposition of law and considering the peculiar facts and circumstances of present case, learned counsel Mr.K.V. Shelat submitted that the Court-below has assigned sufficient reasons for arriving at the conclusions that the reasons for delay are not satisfactory and the same have not been shown to be suffering from any infirmity, perversity or jurisdictional error so as to want interference of this Court under its limited jurisdiction, the present petition may not be entertained and deserves to be dismissed. 12. Having heard learned counsels for the respective parties and on perusal of the material placed on record, the question is whether the petitioners have placed material before the Court-below to substantiate that there was sufficient reasons for the delay of aforesaid period i.e. 11 years and more in filing appeal against the judgment and decree of eviction ? 13. The answer is in negative. 14. The suit filed for possession of the suit premises on the ground of non-payment of rent and acquired of alternative accommodation by the tenant. In 2001, the plaintiff had entered into witness box and after some time of his cross examination, learned counsel for the tenant defendant sought time for three times and the Court had liberally granted the time so that effective cross examination could be possible by the counsel. On 07.08.2001, the matter proceeded ex-parte as counsel submitted that he has no instructions in the matter and the same was disclosed by way of pursis. The matter was adjourned twice i.e. 16.08.2001 and 03.09.2001. On 07.08.2001, the matter proceeded ex-parte as counsel submitted that he has no instructions in the matter and the same was disclosed by way of pursis. The matter was adjourned twice i.e. 16.08.2001 and 03.09.2001. On the last date, the counsel for the tenant defendant submitted a letter along with slip of acknowledgment of postal department bearing thumb impression of the tenant defendant, to show that he having no instructions and despite of intimation of the date of the hearing, the tenant defendant could not turn up to pursue the proceedings and therefore, he sought permission of the Court from the retirement of the case and accordingly, pursuant to the RPAD letter and acknowledgment thereof, the Court thought it fit not to issue advocate notice and proceeded in accordance with law. The suit was decreed ex-parte vide its judgment and order dated 12.09.2001. The execution petition filed in the year 2012 i.e. after 11 years of the passing of the decree. During the period of 11 years, the tenant defendant had an opportunity to enquire about the pendency of suit. There was an order of the Court to deposit the rent regularly. If it is so then it can be presumed that the tenant defendant was aware about the result of the suit and despite of this, she set quit. The contention is that for 11 years, respondent owner did not have filed any execution petition and therefore, the delay can be considered from the date of service of execution petition. This contention cannot be accepted, as it was defendant tenant who had not acted diligently and remained inactive. It needs to be noted that nowhere it is stated that the thumb impression bears on the postal acknowledgment is not that of the defendant tenant. Thus, once the letter of intimation sent by advocate stating therein date fixed by the Court for the suit proceedings, then there is no legal requirement that the Court should have issued a fresh notice granting opportunity to defend the suit. 15. The law is well settled on the issue of delay condone. Thus, once the letter of intimation sent by advocate stating therein date fixed by the Court for the suit proceedings, then there is no legal requirement that the Court should have issued a fresh notice granting opportunity to defend the suit. 15. The law is well settled on the issue of delay condone. The condonation of delay is a matter of discretion of the Court and while considering the application for condonation of delay, the issue required to be decided whether the applicant is able to explain the sufficient cause for the delay so occurred and to decide the issue, the liberal construction has to be applied so as to do complete justice. 16. In the case of Esha Bhattacharyaji Vs. Managing Committee of Raghunathpur Nafar Academy ( 2013 (12) SCC 649 ), the Apex Court enunciated broad principles in Paras-21 and 22 as follows: “21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1(i) There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice. 21.2(ii) The terms “sufficient cause' should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. 21.7(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9(ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: 22.1(a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.3(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4(d) The increasing tendency to perceive delay as a non-serious matter and hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed of course, within legal parameters.” 17. In light of the legal proposition and applying the same to the facts of present case, this Court is of considered view that the Court-below after considering the conduct, behavior of the defendant, came to a conclusion that she was throughout negligent and not acted diligently and remained inactive, and did not satisfy with the grounds to exercise discretion to condone the delay. 18. As a result of the above discussions, the impugned order does not suffer from any jurisdictional error and interference of this Court was not warranted. The petition fails and is dismissed.