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CA/9865/2009 5/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 9865 of 2009
In
FIRST
APPEAL (STAMP NUMBER) No. 5020 of 2009
=========================================================
PATEL
REVIDAS KHEMCHANDDAS - Petitioner(s)
Versus
PATEL
KANTIBHAI AMBARAMDAS - Respondent(s)
=========================================================
Appearance
:
MR
YN RAVANI for
Petitioner(s) : 1,
MR AV PRAJAPATI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/01/2010
ORAL
ORDER
1. Heard
learned advocate Mr.Ankit Shah for learned advocate Mr.Y.N.Ravani on
behalf of applicant and learned advocate Mr.A.V.Prajapati for
respondent.
2. This
application is preferred by applicant with a prayer to condone the
delay of 895 days caused in filing first appeal. This application has
been opposed by respondent by filing affidavit-in-reply in
November,2009.
3. Learned
advocate Mr.Shah appearing for applicant submitted that delay
occurred due to genuine reasons which considered to be a sufficient
cause for condoning delay in filing first appeal. The judgment and
decree dated 7.12.2006 passed by 3rd Senior Civil Judge,
Mehsana in Regular Civil Suit No.131 of 2003 where application was
made by applicant for certified copy and on the very next date i.e.
on 8.12.2006 which was ready for delivery on 18.12.2006 and period of
90 days started from 19.12.2006 and last date of filing first appeal
as per limitation from 19.3.2007. That various necessary instructions
were given to advocate practicing at Mehsana but that advocate has
informed to applicant to engage the advocate practicing in the
Gujarat High Court, who will file appeal. Before deciding this
question to engage advocate practicing in the Gujarat High Court, one
incident occurred on 27.1.2007 the only son of the applicant viz.
Mr.Amrish Patel was kidnapped while he was on a business trip from
Ahmedabad to Mehsana on 27.1.2007. He was dealing in the business of
gold and hence on 27.1.2007 he had to deliver 3.5 kg. Of gold worth
Rs.35 lacs. The culprit kidnapped the son of the applicant with
motive to lot and ultimately murdered the son of the applicant on
28.1.2007. The death certificate of the applicant’s only son as well
as news article in Divya Bhaskar newspaper are produced on record.
The son of the applicant was murdered at very young age of 31 years
and such incident occurred during limitation of the judgment
delivered in the Regular Civil Suit No. 131 of 2003 filed by
applicant. That due to such tragedy, applicant lost his mental
control and was not in full sense due to the sudden death of his only
son. The applicant suffered heavy pain and lost mentally, physically
and economically to the tune of Rs.35 lacs and also because of the
fact that he was inquired very now and then by police to him and his
entire family and further police was also not cooperating with
applicant regards to the investigation and other formalities
concerning the case of death of his only son. Due to aforesaid
incident, applicant was not in proper mental frame of mind an was not
leading life as he was not able to overcome the death of his only
son. Therefore, he left for pilgrimage as he was under impression
that advocate at Mehsana has already filed his first appeal in the
Gujarat High Court by making contact with an advocate of Gujarat High
Court. The applicant has left his hometown with a view to overcome
the death of his only son and with a belief that his case is pursued
by an advocate of Mehsana. Since long he was out of station and
frequently applicant was going out of station and he could not be
contacted by his advocate at Mehsana. Thereafter, contact was made of
advocate, who has given message to him that he was not filed any
appeal because his signature is necessary in Vakalatnama. Ultimately,
he has decided to file first appeal but, meanwhile there was a delay.
Therefore, present application is filed with a prayer to condone the
delay in filing the first appeal.
4. The
opponent has objected the prayer made in delay condonation
application and submitted that there is no medical certificate is
produced qua the mental status of applicant. Therefore, such
contention cannot be taken into consideration for condoning the
delay. It is necessary to note that opponent is not disputing the
facts of murder of only son of applicant. Therefore, according to
opponent, only when the public notice was issued in newspaper, the
applicant is filing the appeal after period of 895 days just to grab
money under the guise of the objection to the public notice published
in the newspaper. Therefore, according to opponent, delay cannot be
condoned.
5. I
have considered submissions made by both learned advocates and also
averments made in this application as well as reply filed by
opponent. I have also perused death certificate of Patel Amrishbhai
dated 28.1.2007 and news published in Divya Bhaskar and also public
notice dated 13.8.2009 and also a public notice issued by applicant.
6. In
short, question of delay is to be considered by this Court while
keeping in mind the fact that length of delay is not much relevant.
But the question is that delay has been explained by applicant with
sufficient cause or not and delay occurred due to reason which was
found beyond control of applicant. Looking to facts which are not in
dispute between both parties that on 27.1.2007 before completion of
limitation period, accident was occurred where only son of applicant
was murdered by some culprit. Naturally it gives set back to the
father whose son has been murdered by culprit. During this period, he
may not be able to take decision or take care to file first appeal
against judgment and decree delivered on 7.12.2006.
7. The
aspect of ‘sufficient cause’ has been interpreted by Apex Court in
case of State of Karnataka v. Y. Moideen Kunhi (dead) by LRs &
Ors. Reported in AIR 2009 SC 2577. Relevant observations of aforesaid
decision are in Para.16 and 19, which is quoted as under :
16. This
Court has in appropriate cases even condoned delays of over 30 years
in filing of SLPs. In Nand Kishore v. State of Punjab 1995 (6) SCC
614 this court held:
………13.
The step of the three-member Bench so taken reveal its mind as
reflected in the above proceedings. Their Lordships wanted to do
substantial justice. It was thought better to advise the petitioner
to file special leave petition. As we view this order, having invited
the petitioner to file the special leave petition, it is no longer
advisable or appropriate for us to retrace back the step put forward
by the three- member Bench. It is significant to recall that the writ
application was dismissed on 5-2-1962 and the moment Moti Ram Deka
case appeared on the scene, the appellant or 24-2-1964, within
limitation, brought forward his suit which got strengthened by Gurdev
Singh case appearing within a couple of months of its filing. The
appellant-special leave petitioner was thus bona fide pursuing an
appropriate remedy for all these years. In these circumstances, we
think that an appropriate case for condonation of delay of the
intervening period has been made out. We, therefore, allow CC 11644
of 1991 and condone the long durated delay in these exceptional
circumstances. On doing so, we grant leave to appeal. The appeal thus
arising and the Civil Appeal No. 632 of 1975 may now be disposed of
together….
19. The
expression `sufficient cause as appearing in Section 5 of the
Indian Limitation Act, 1963 (in short the `Limitation Act ) must
receive a liberal construction so as to advance substantial justice
as was noted by this Court in G. Ramegowda, Major etc. v. The
Special Land Acquisition Officer, Bangalore (AIR 1988 SC 897). Para 8
of the judgment reads as follows:
8.
…….The law of limitation is, no doubt, the same for a private
citizen as for governmental authorities. Government, like any other
litigant must take responsibility for the acts or omissions of its
officers. But a somewhat different complexion is imparted to the
matter where Government makes out a case where public interest was
shown to have suffered owing to acts of fraud or bad faith on the
part of its officers or agents and where the officers were clearly at
cross-purposes with it.
Therefore,
in assessing what, in a particular case, constitutes sufficient
cause for purposes of Section 5, it might, perhaps, be somewhat
unrealistic to exclude from the considerations that go into the
judicial verdict, these factors which are peculiar to and
characteristic of the functioning of the government. Governmental
decisions are proverbially slow encumbered, as they are, by a
considerable degree of procedural red tape in the process of their
making. A certain amount of latitude is, therefore, not
impermissible. It is rightly said that those who bear responsibility
of Government must have a little play at the joints . Due
recognition of these limitations on governmental functioning of
course, within reasonable limits is necessary if the judicial
approach is not to be rendered unrealistic. It would, perhaps, be
unfair and unrealistic to put government and private parties on the
same footing in all respects in such matters. Implicit in the very
nature of governmental functioning is procedural delay incidental to
the decision-making process. In the opinion of the High Court, the
conduct of the law officers of the Government placed the Government
in a predicament and that it was one of those cases where the mala
fides of the officers should not be imputed to Government. It relied
upon and trusted its law officers. Lindley, M.R., in the In re
National Bank of Wales Ltd. (1899) 2 Ch. 629 at p.673 observed,
though in a different context:
Business
cannot be carried on upon principles of distrust. Men in responsible
positions must be trusted by those above them, as well as by those
below them, until there is reason to distrust them.
8. Considering
aforesaid decision of Apex Court and observations made therein when
delay occurred due to abnormal circumstances which have been pointed
out by applicant, naturally in such circumstances applicant was not
able to take care of such legal proceedings which has not been filed
in time by his advocate practicing at Mehsana. Therefore, according
to my opinion, considering fact that decision given by trial Court on
7.12.2006 and immediately on the next date i.e. 8.12.2006 application
was made for certified copy to be obtained from Court concerned which
suggests that prior to incident sufficient care was taken by
applicant to obtain certified copy by filing application on next date
i.e. on 8.12.2006. Therefore, there is no intentional or willful
delay occurred because of lethargic approach of applicant, but
looking to facts of this case there is a genuine reason in not filing
the appeal in time and cause which has been shown by applicant is
justified and can be considered as sufficient cause. Therefore,
according to my opinion, applicant has satisfactorily explained delay
of 895 days caused in filing first appeal. Such cause is considered
to be a sufficient and genuine cause. Therefore, contentions raised
by learned advocate Mr.Prajapati cannot be accepted. Delay of 895
days caused in filing first appeal is condoned in the interest of
justice. Rule is made absolute accordingly.
(H.K.RATHOD,J.)
(vipul)
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