Dhimant Hasmukhlal Hojiwala and Others vs Babubhai Bhalabhai Patel

Abhilasha Kumari, J.—Rule. Mr. A.J. Shastri, learned Counsel, waives service of notice of Rule on behalf of the respondent. In the facts and circumstances of the case and with the consent of the learned Counsel for the respective parties, the petition is being heard and disposed of, today.

This petition has been preferred under Articles 226 and 227 of the Constitution of India with a prayer to quash and set aside order dated 30.04.2008 rendered by the 4th Fast Track Court, Surat, below application at Exhibit 1, being Civil Miscellaneous Application (Delay) No. 227 of 2007 as well as order dated 16.05.2009 passed by the learned 6th Additional District and Sessions Judge, Surat, in Civil Miscellaneous Review Application No. 1(A) of 2008, whereby, the Review Application against order dated 30.04.2008 has been rejected.

Briefly stated, the facts necessary for the decision of the petition are that one Dahyabhai Makanbhai Patel expired leaving behind a Will dated 23.07.1990. The petitioners preferred an application for obtaining Probate in respect of the above-mentioned Will, being Exhibit 34. By order dated 03.10.1997, the said application was allowed by the Civil Court. Thereafter, the respondent preferred Civil Miscellaneous Application (Delay) No. 227 of 2007 seeking condonation of delay in challenging order dated 03.10.1997 in Probate Application No. 34 of 1997. The application for condonation of delay preferred by the respondent came to be allowed vide order dated 30.04.2008, which is reproduced hereinbelow:

Read the application and heard the advocate. Considered the ruling cited at 1999(2) GCD 1290 (Guj.).

The opponent has not filed any reply and made submission. This matter was filed since dt.6.11.2007. Hence in the interest of justice this application is allowed with subject to cost Rs. 1,000/- to the opponent.

On the very same day, the petitioners preferred an application at Ex.13, stating therein that the application for condonation of delay has been allowed without hearing them and that the learned advocate for the petitioners had submitted before the concerned Court at 12:00 noon on 30.04.2008 that he would be submitting the reply to the said application, during the course of the day, however, the said learned advocate had to go to Navsari for some urgent work and on his return at 3:45 p.m., he came to know from his junior colleague that the application for condonation of delay had already been decided and allowed. Upon the application at Ex.13, the 4th Fast Track Court, Surat, passed an order dated 30.04.2008 staying the order passed below application for condonation of delay (Ex.1) upto 15.05.2008. The petitioners preferred a review application against the order below Ex.1 whereby delay had been condoned without hearing him. The said review application has been rejected by order dated 16.05.2009, hence the petition.

The learned Counsel for the petitioners has submitted that when the Court hearing the application for condonation of delay had permitted the learned advocate for the petitioners to file a reply to the application for condonation of delay, the order condoning delay ought not to have been passed without hearing the learned Counsel for the petitioners. That a perusal of order dated 30.04.2008 below Ex.1 makes it very clear that the learned advocate for the petitioners has not been heard and no cogent reasons have been recorded by the Court for condoning the delay of more than 10 years, while imposing costs of Rs. 1,000/- on the respondent.

That by passing the impugned order in the review application, the District Court has fallen into error by adopting a highly technical approach and rejecting the said application on the ground that there is no error apparent on the face of the order dated 30.04.2008, below Ex.1. In fact, the review Court below has taken note of the fact that the petitioners were not heard before passing the said order, however, it has been stated by the Court below that the petitioners can argue their case in the appeal, if they so desire, therefore, no prejudice has been caused to them by not hearing them. The learned Counsel for the petitioners has emphasized that both the courts below have fallen into error and as grave miscarriage of justice has occasioned, the impugned orders be set aside, and the petition allowed.

On the other hand, Mr. A.J. Shastri, learned Counsel for the respondent, has supported the order below Ex.1 condoning the delay, as well as the order passed by the District Court in the review application, by stating that the petitioners ought to have been vigilant in filing the reply at the appropriate point of time. However, the learned Counsel for the respondent has not been able to dispute the fact that the petitioners were not heard before passing the order in the condonation of delay application.

I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned orders and other documents on record.

In the background of the above facts and circumstances, if the order dated 30.04.2008 below Ex.1, which has been reproduced hereinabove, is perused, it is evident that only one advocate has been heard and that is the learned advocate for the respondent, as it is not disputed that the learned advocate for the petitioners has not been heard. The said order, on the very face of it, is devoid of any reasons whatsoever, for condoning the delay of over 10 years, merely by imposing costs of Rs. 1,000/-. The glaring aspect in this order is that the petitioners have not been heard. The impugned order in the review application, is a lengthy one. However, the sum and substance and effect thereof is that the review application of the petitioners has been dismissed, on the ground that no error apparent on the face of the order under review is discernible, in terms of the provisions of Order 47, Rule 1 of the Code of Civil Procedure, 1908 (''the Code''). 12. In the considered view of this Court, both, order dated 30.04.2008 below Ex.1 and the impugned order in the review application, have not been passed in accordance with law or in proper exercise of jurisdiction vested in the Courts below, thereby resulting in a failure of justice. In the impugned order passed in the review application, the Court below has dealt with the provisions of Order 47, Rule 1 of the Code while arriving at a conclusion that there is no error apparent on the face of the order under review. It is obvious that the Court lost sight of the said provision of law, which categorically provides that one of the grounds for review is ''any other sufficient reason''. The review Court below does not dispute that the petitioners were not heard and this fact is glaringly apparent from the order passed below Ex.1. In these circumstances, there is no manner of doubt that there is ''sufficient reason'' available to the petitioners to prefer an application for review, as the order below Exh1 has been passed in utter violation of the principles of Natural Justice. The said order is, therefore, erroneous and has not been passed in accordance with law or by proper exercise of jurisdiction vested in the Court below, occasioning a grave failure of justice.

For the reasons stated hereinabove, the petition is partly-allowed. Order dated 30.04.2008 rendered by the 4th Fast Track Court, Surat, below application at Exhibit 1, being Civil Miscellaneous Application (Delay) No. 227 of 2007 as well as order dated 16.05.2009 passed by the learned 6th Additional District and Sessions Judge, Surat, in Civil Miscellaneous Review Application No. 1(A) of 2008, are both quashed and set aside. The matter is remanded to the Court that has passed the order dated 30.04.2008 below application for condonation of delay at Ex.1, for fresh hearing, in accordance with law. The concerned Court below shall give an opportunity of hearing to the parties, taking into consideration the pleadings filed by them and render a decision thereupon, in accordance with law, as expeditiously as possible and without any avoidable delay.

It is brought to the notice of this Court that the appeal has been registered on the basis of order dated 30.10.2008, below Ex.1. If that is so, as a consequence of this order, the appeal be de-registered. Rule is made absolute, to the above extent. There shall be no orders as to costs.