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Judgment
Abhilasha Kumari, J.—Rule. Mr. M.T.M. Hakim, learned Advocate, waives the notice of service of rule on behalf of respondent Nos. 1 to 4.
1.0 This petition has been filed under Articles 226 and 227 of the Constitution of India, with a prayer to quash and set aside order dated 31st January, 2009, passed below application at Exhibit-16, by the 4th Additional District Judge, Vadodara, in Civil Misc.[Delay] Application No. 919 of 2008.
2.0 The petitioner herein is the original plaintiff. He has filed Regular Civil Suit No. 1559 of 1996, in respect of the Suit property, along with an application for interim injunction.
2.1 The trial Court granted ad-interim-relief in favour of the petitioner, which was subsequently made absolute, till the final disposal of the Suit, by an order dated 17.05.1999.
2.2 The respondents are the original defendants, who have filed an appeal against the said order, along with an application for condonation of delay, on the ground that the order of the trial Court granting ex-parte injunction has been passed without hearing them, and that they were not aware of the said order, for a long period of time, therefore, the delay may be condoned.
2.3 This application was contested by the petitioner, on the ground that the order of the trial Court has been passed in 1999, whereas the appeal has been preferred in 2008, and there is an unreasonable delay, which has not been properly explained.
2.4 The Court below, after hearing the parties, observed that as the order sought to be appealed does not contain any reasons and seems to have been passed without recording satisfaction of the Court, the interest of justice would be met, if it is permitted to be assailed in appeal. The application for condonation of delay was allowed, by imposing costs of Rs. 2,000/- on the respondents. Hence, the present petition.
3.0 Mr. Sudhir Mehta, learned Counsel for the petitioner has submitted as under:
(i) That, the trial Court has rightly granted an injunction in favour of the petitioner which has been extended, till the final hearing and decision of the Suit.
(ii) That, the application for condonation of delay has been filed after about 9 years, i.e. long after the prescribed period of limitation for filing an appeal, which is 30 days, and sufficient cause has not been shown for the inordinate delay. The Court has allowed the application with costs and has not appreciated the legal position that the day to day delay has not been explained, and no convincing reasons have been given therefore the impugned order deserves to be set aside, being against the settled principles of law.
3.1 In support of the above submissions reliance has been placed upon;
Wine Agencies Vs. Financial Commissioner, Revenue and Others,
Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others,
Hindustan Zinc Ltd. Vs. Bhagwan Singh Bhati and Others,
State of Gujarat v. Bai Jadavben Wd./o. Keshubhai Jiijibhai 2006(4) GLR 3006
4.0 On the other hand, Mr. M.T.M. Hakim, learned Counsel for the respondents has submitted that the impugned order does not suffer from any illegality or infirmity and it cannot be said that the respondents have not satisfactorily explained the delay, in filing the appeal. Referring to the application for condonation of delay filed by the respondents, which is to be found at the running page No. 50 of the Paper Book, it is submitted that the respondents were not aware of the order of the trial Court, as it has been passed ex-parte, without giving them any opportunity of hearing and this aspect is clearly reflected in Paragraph No. 2 of the said application.
(i) It is further submitted that the respondents came to know about the said order only on 04.12.2007, when the petitioner filed an application for police protection, to restrain the respondents from interfering with the Suit property.
(ii) The respondents have filed a reply to the said application and taken steps to file an appeal against the order of the trial Court when they came to know about it. The delay has occasioned because the respondents had to engage another advocate to represent them in the appeal, and this aspect has been clearly stated in the application.
(iii) The Court below has imposed costs upon the respondents and has taken into consideration the aspect that the order of injunction passed against them was an ex-parte order, which was later on confirmed. It has also been considered by the first appellate Court that the said order does not contain any reasons and nor does it record the satisfaction of the Court and, therefore, the delay has been rightly condoned in the interest of justice.
4.1 In support of the above submissions, the learned Counsel for the respondents has placed reliance upon the following decisions;
N. Balakrishnan Vs. M. Krishnamurthy,
Special Land Acquisition Officer v. Lilavatiben Kodar Ranchhod and Ors. 2002 (3) GLR 1874
Babubhai Bhagwanji Mehta Vs. State of Gujarat Special Secretary (Appeals),
5.0 I have heard the learned Counsel for the respective parties at considerable length, and have perused the averments made in the petition, contents of the order under challenge, as well as other documents on recored.
5.1 It is noticed by the Court below in the impugned order that the order which is sought to be appealed against by the respondents does not contain any reasons for grant of ex parte injunction against the respondents and in the interest of justice, the respondents should be permitted to assail the said order in appeal. The explanation of the respondents that they were not aware of passing of the said ex parte order, and have not been granted an opportunity of being heard and that they took steps to file an appeal after they came to know about it, has been considered, by the Court below. However, taking into consideration the delay of about 9 years, it was thought fit to impose costs of Rs. 2,000/-, while allowing the application for condonation of delay. In the application for condonation of delay, it has been specifically stated that the respondents were not aware of the order of the trial Court and came to know about the same, only at the stage when the petitioner filed an application for police protection. Evidently, the Court below has taken, the averments made in the application, into consideration and has found the explanation given by the respondents for the condonation of delay, satisfactory and sufficient. The impugned order may not be very happily worded, but for that reason alone, the litigant should not suffer, especially as the Court below has considered the matter and exercised the jurisdiction vested in it, by condoning the delay. If the application for condonation of delay is perused, it cannot be said that no explanation whatsoever has been offered by them.
5.2 The principles of law enunciated in the judgments relied upon by the learned Counsel for the petitioner are not disputed but, as each case turns upon its own peculiar facts, the said judgments will not be applicable in the present case.
5.3 It would be fruitful to have a look at the provisions of Section 5 of the Limitation Act;
Extension of prescribed period in certain cases: Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
5.4 From the above, it is clear that an appeal or application may be admitted after the prescribed period, if the applicant or appellant, as the case may be, is able to satisfy the Court that he had ''sufficient cause'' for not preferring the appeal, or making the application within the prescribed period of time. In other words, it is incumbent upon the applicant to give a sufficiently reasonable explanation for the delay that has occasioned in approaching the Court, after the lapse of the stipulated period.
5.5 In Collector, Land Acquisition, Anantnag and Anr. (Supra), it was held by the Supreme Court as under in Para-3,
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
''Every day''s delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour''s delay? Every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
5.6 It is clear from the above-mentioned principles carved out from the above mentioned judgments, as quoted hereinabove, there is no need to explain the delay of each day, and the cause of substantial justice would outweigh mere technical considerations.
5.7 In the present case, the respondents would not stand to gain from filing an appeal belatedly. The explanation that they were not aware of passing of the injunction against them, until the petitioner filed an application for police assistance, has been found convincing by the Court below.
5.8 In N. Balakrishnan (Supra)Supreme Court held as under;
Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower Court.
5.9 In Babubhai Bhagwanji Mehta and Ors. (Supra), the Division Bench of this Court has held as under in Para-5,
Refusing to condone delay result in a meritorious matter being thrown out at the very threshold and cause of justice may be defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so.
5.10 In Special Land Acquisition Officer (Supra) another Division Bench of this Court, held as under in Paras-6 and 9,
Obviously, willful indifferent person cannot be helped by the Court of law when he seeks the justice for condonation of delay. Nevertheless, it the record discloses that the parties in a given case, though delay has occasioned, had not abandoned animus to question the impugned order, decision or judgment, is an important factor which should be taken into consideration for determining the genuineness and sufficiency of the ground for determining the genuineness and sufficiency of the ground for condonation of delay.
The Court should be ordinarily lenient and liberal in determining the sufficiency or reasonability of ground for condonation so as to see that no meritorious matter is thrown away on a technical plea of delay, more so when the animus not to accept the impugned order, decision, judgment or award, as final, is manifested and again that too in case of parties where impersonal mechanism and machinery has been involved in decision-making process.
5.11 Being guided by and considering the facts of the case in hand, the above principles of law, this Court finds that there is no infirmity in the impugned order, so as to warrant interference of this Court.
6.0 Consequently, the petition fails and is dismissed. Rule is discharged.