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Judgment
A.J. Shastri, J
The present petition under Article 226 of the Constitution of India is filed for the purpose of challenging the legality and validity of an order dated
12.9.2018 passed by learned Assistant Civil Judge, Vadodara below Exh.17 in Regular Civil Suit No.967 of 2012.
The case of the petitioner in brief is that petitioner No.1 is a Government Company within the meaning of provisions contained under Companies
Act, 1956 and is a public sector undertaking involved in the production, sale and distribution of petroleum products. Petitioner Nos.2 and 3 are the
employees working in petitioner No.1 Corporation. Respondent, who is he original plaintiff and a dealer of petroleum products by virtue of an
agreement with M/s IBP Company Ltd. Has started operating the R.O. dealership under CÂ2 Category and the tenure of dealership was fixed as 15
years subject to renewal. M/s IBP Company Ltd. awarded a retail outlet on 24.12.2002 on certain terms and conditions. Somewhere around 2007, as
per the case of the petitioner, M/s IPB merged with petitioner No.1 and pursuant to it a letter dated 19.7.2008 was issued by petitioner No.1 to the
respondent requesting them to adhere to the new guidelines being prescribed by petitioner No.1, since they have taken over all the assets and liabilities
with rights and obligations. The request which was made by petitioner No.1 is to convert R.O. Category from CÂ2 site to B/A site. The said
conversion was protested by the respondent vide letter dated 24.7.2008 and then a negotiation was undertaken first on 10.10.2008 and thereafter on
6.11.2012. However, the same was not acceptable to the respondent. Since the reply was not forthcoming from the respondent, petitioner No.1
addressed a letter on 23.11.2012 directing the respondent to enter into a new dealership category agreement within 15 days else, necessary steps will
be taken by the petitioner. The respondent to the said communication has again protested and reiterated a stand on the premise that the dealership
agreement dated 24.12.2002 is still in operation without any change or condition, as a result of this, has refused to enter into new dealership
agreement. Since there was no consensus arrived at, this grievance was resulted in filing of Regular Civil Suit No.967 of 2012 before the learned Civil
Judge, Baroda on 13.12.2012 inter alia praying to restrain the order against the petitioner from stopping supply of petroleum products and to direct the
petitioners not to forcibly convert the site from CÂ2 to B/A. The learned Judge passed a restrained order on 30.1.2014 which order was carried by
the petitioner in an appeal before the learned 4th Additional Sessions Judge, Baroda being CMA No.116 of 2014. The appeal came to be dismissed on
19.4.2017 with a direction to hear the main suit proceedings expeditiously.
Subsequent to that, as per the say of the petitioners, a request was made on 20.1.2018 by the petitioners to the learned trial court whether the suit is
pending to open up the stage of filing of written statement. The said application was opposed by filing reply in the month of May, 2018 and ultimately,
after hearing by order dated 12.9.2013, the request of the petitioners came to be rejected, instead, a cost of Rs.5,000/Â was also imposed upon to be
paid to DLSA, Vadodara and it is this order dated 12.9.2019 which is made the subject matter of present petition under Article 226 of the Constitution
of India.
Mr. M.R.Bhatt, learned Senior Advocate appearing on behalf of the petitioners, has vehemently contended that a serious error of law is committed
by the court below in refusing the request for submitting written statement. The learned advocate has further submitted that the effect of not opening
of stage of filing of written statement would create an irreversible situation for the petitioners and th resultant effect is that the respondent herein will
be allowed to operate the dealership and the petitioners will have to go on supplying petroleum products though the main tenure of the dealership gets
over. It has been contended that the circumstances were such in which the petitioners were not at fault. On the contrary, after disposal of the appeal
within a very short period, th request came to be made to reopen the stage of filing of written statement. On the contrary, by causing delay, the
petitioners are not going to get anything to gain anything out of it because even if the dealership tenure is lapsed, the petitioners will have to go by
supplying of petroleum products. On the contrary, that cannot be said to be a deliberate delay but on account of change of officers, this inadvertence
as taken place which ought not to have been taken in such a hyper technical way. The learned Senior Advocate has submitted that procedures are
meant for administration of justice and not to thwart. This technicality which has been adopted by the learned trial judge will seriously damage the
interest of the petitioners and unlawful gain to the respondent. Mr.Bhatt, learned Senior Advocate has further submitted that the appeal came to be
disposed of in which there was a categorical observation with regard to expeditious hearing of the main suit proceedings and in that view of the
matter, as a part of such adjudicating process, the petitioners have made a request to reopen the stage of submitting written statement with immediate
effect and hence, non granting of such request would frustrate the very object for which the direction was issued by the appellate court to the trial
court. A serious irreparable injury will be caused to the petitioners if such technical plea is allowed to be taken and there are serious decisions which
have taken the view to grant such permission with appropriate cost and after leaving it open for the Court to impose any reasonable condition, learned
Senior Advocate has requested to set aside the impugned order and in the larger interest of justice permit the petitioners to contest the main suit on
merits instead of going into technicality. No other submissions have been made.
To meet with the stand taken by the learned Senior Advocate for the petitioners, learned advocate, Mr. H.R.Prajapati appearing on behalf of the
contesting respondent has vehemently opposed the petition and requested the Court not to exercise any extraordinary jurisdiction in this regard. It is
submitted that right to file the written statement was closed way back in March,2013 and even after granting opportunity on three occasions i.e. on
4.1.2013, 2.2.2013 and 8.3.2013, the defendant failed to do so and, therefore, for such a gross lapse on the part of defendant, no relief could have been
granted. Apart from that, this application which has been given is also after a period of 6 years and the reasons which have been assigned in the
application is not at all sufficient enough to justify this gross delay. As a result of this, no case is made out by the petitioner. It has further been
submitted that the petitioner â€" organization is a public limited company armed with several competent officers and possibly, might be having the legal
cell, as well. Therefore, if the officers are not vigilant enough, no leniency should be given and the discretion which has been exercised by the court
below is not possible to be branded as perverse in any form. On the contrary, in the recent pronouncement delivered by the Apex Court, wherein it is
held that if the litigant has not shown any due diligence, the delay cannot be construed liberally. As a result of this, no case is made out by the
petitioner.
Having heard the learned advocates appearing for the parties and having gone through the materials produced on record, no doubt, prima facie it
appears that there is a delay in preferring an application, but this delay whether justifiable or not is to be evaluated on the basis of explanation which
has been submitted and for that purpose, a perusal of application deserves to be made, which is reflecting on page 57. The assertion which has been
made pointing out the circumstance as to why delay was occasioned is essentially reflecting in paras 8 and 9 which read as under:
“8. That, unfortunately despite due diligence the defendants neither knew in which court present suit was pending nor did the defendant know
about the date of hearing. Therefore, the defendant could not appear before this Hon'ble Court to defend themselves. It was only when the defendants
received copies of affidavit in lieu of examinationÂinÂchief filed by the plaintiff that the defendants came to know that the suit was pending for trial
before this Hon'ble Court and that the date of hearing was 27/12/2017.
“9. That the officers dealing with the subject matter of the suit were transferred and new officers took charge. New officers were not conversant
with the facts of the said subject matter and place the same on record of the suit and to make proper and appropriate representation.â€
What is being curled out from this is that despite due diligence, the defendant never knew in which Court the present suit was pending nor did the
defendant know about the date of hearing and, therefore, could not appear to defend and further explanation is that subject matter of suit was
transferred and new officers took charge who were not conversant with the facts on the subject matter. Therfor4e, sum and substance is that the
ignorance being pleaded. Rest of the paragraphs of that application are consequences which are likely to be fallen back upon the petitioners if written
statement is not permitted. Now if these explanations which are offered are to be viewed from other corresponding circumstances, then it would
appear that same is not digestible for the simple reason that Indian Oil Corporation is an authority governed by the team of officers having a separate
establishment and as such, does not digestible that for a period of six more years, no officers were looking at this issue which is pending for
consideration right from 2012, on the contrary, must have dealt with vigilantly. Further, it appears that the injunction application which was submitted in
the suit in 2012 was contested throughout by the petitioners in which there was an effective participation which was not in dispute and the said
injunction application got decided on 30.7.2014 which is well within the knowledge of the petitioners. So, it simply appears from this explanation that
officers were unaware in which the court the suit was transferred are the circumstances sounding no confidence particularly where in parallel, Exh.5
application was contested. On the contrary, it appears that the petitioners took chance to see that Exh.5 be dismissed and then in case of necessity,
written statement would be filed and as such, the explanation which has been offered is not sufficient as has been found by the learned trial Judge. It
is illogical to accept that for the purpose of Exh.5 application and its contest, the Officers were vigilant and lawyers were also not available till July,
2014 and for the purpose of filing written statement, there was no such availability. It may be that the consequences which are likely to be fallen back
upon the petitioners might be contrary to their policy but then no premium can be paid for the sheer negligence or for calculative participation in the
suit proceedings when the law requires a particular time schedule to stageÂwise participation in the suit.
Now in this context, if few dates are to be looked into, it would be quite clear that there appears to be a gross delay and laches. The suit was
submitted of which summons are served upon the petitioners on 31.12.2012 which is not in dispute. Thereafter also, twice time has been granted one
4.1.2013 as well as on 8.2.2013 which is also not in dispute and ultimately on account of nonÂcooperation, the right was closed down on 8.2.2013.
During this span, no steps were taken to submit written statement and as against this, Exh.5 application was indisputably contested which got decided
on 30.7.2014 and this application Exh.17 has bee given even much thereafter appears to have been presented in April, 2018 and as such, the
explanation in brief which has been given is not sounding any confidence to accept the same as sufficient explanation. The law is equally applicable to
an ordinary citizen as well as to a might corporation run by the team of officers. Now in the context of this, a bare perusal of a statutory requirement
to submit written statement is to be looked into, it clearly stipulates a specific time limit which is a mandate of a Statute which cannot be given a goÂ‐
by. Even if it is to be construed as directory then also, there is a limit to exercise the discretion. Such provision is referred to hereinafter. Order 8
clearly has clearly prescribed a time limit of 30 days and in any case, not beyond 90 days from the date of service of summons. For immediate perusal,
the Order 8, Rules 1 and 1A read as under:
“R. 1. Written statement
The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence :
[Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such
other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of
service of summons.]
R. 1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him
(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or
claim for setÂoff or counterÂclaim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him
and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
b [(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the
Court, be received in evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to documents.Â(a) produced for the cross examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.]â€
This statutory provision has clearly mandated that in any case, 90 days period is sufficient and maximum to submit the written statement and as
such, even Courts are also not in a position to tinker with such statutory provision and cannot ignore the same. No doubt, in a given situation, series of
decisions have taken place wherein on account of genuine exigencies by treating this provision being a procedural in nature has held that it is directory
and for that, by imposition of some condition, the written statement has been permitted, but in those cases where there appears to be a genuine
explanation of delay. Each case is dependent upon its own factual background and as such, from the bare reading of the application at Exh.17,
precisely paragraphs 8 and 9 as referred to above, the same is not possible to be construed as sufficient explanation to open the stage for filing written
statement and as such, the learned Judge appears to have not committed any error in rejecting the application.
Further, it also appears that the learned Judge is quite conscious about various proposition of law laid down by series of decisions wherein the
provision of Order 8 Rule 1 is treated as directory and then applying the same proposition has categorically found that irrespective of it, the case is not
possible to be accepted for allowing the application. The detailed conclusion based upon the record that proper application of mind and with cogent
reasons is reflecting that there is no perversity. The conclusion arrived at by the learned Judge reads as under:
“Keeping in mind above mentioned provision of the law and ruling of Hon'ble Apex Court as well as the Hon'ble Gujarat high court and submission
made by the both the sides. I gave my thought full consideration on this application. I have gone through the entire record of the case and it transpire
that summons/notice of the said case was served to the defendants on 31Â12Â2012. The right of the defendants to file written statement was closed
on 08Â03Â2013 by my predecessor after giving the opportunity to file the written statement on 04Â01Â2013 and 02Â02Â2013 and 08Â03Â2013 but
defendant fails to do so. Therefore the defendants file this application after the lapse of almost 6 years. Moreover I have gone through the reason
mentioned in the application. I am not convince by the reason mentioned in the application because in para 8 of exhÂ17 “that the defendants
neither knew in which court case is pending nor did the defendant know about the date of hearing†this reason is not considered because in vadodara
District court the CIS is completely running from the 2013 and each and every case of is on CIS and CIS is regularly updated by each and every
court. Moreover there is an interesting fact I would like to mentioned that the said defendant also move appeal before the Hon'ble district court,
vadodara vide Misc. Civil Application Number 343Â2014 against the order passed below exhÂ5. It is revealed that the defendant was fully aware
that were this case was lying because whenever any appeal is moved necessary certified cop of order is needed to file the appeal. Moreover the
defendant made the appeal against the interim injunction in the said order it was clearly mention that which court had passed the such order. So it can
not accept the defendant is not aware where the case is lying.
Another reason mentioned in the paraÂ09 of the application is that the “due to transferred of the officer and newly officer were not conversant
with the case therefore the delay was caused†this reason is also not acceptable because the defendant moved appeal before the appellate court at
that time of filing appeal memo, officers of the said defendants have to sign the appeal memo. If officer was able to signed the memo of appeal so,
this court is not convinced why and which circumstance are compelling the officer for not submitting the written statement. Moreover as per the
defendant argued that defendant company is state under Article 12 of the constitution the state should be more vigilant when the distributer is selling
petroleum product but the said defendant is sleeping for many years. Moreover other reason mentioned are not accepted at all because whether the
defendant having only A & B site not C2 site is a question of evidence and that very reason is not acceptable. Moreover trial has started and if this
application is allowed it will led to fresh trial and therefore plaintiff will have to suffer a lot. Further more I have gone through the judgment produced
by the defendant I am agreement with the ratio laid down by Hon'ble Apex Court but the fact of that was different so it will not be helpful in any
manner to the defendant. Moreover I am of the opinion that no convincing reason was mentioned by the defendant. Only a vague and casual
explanation has been advance which is not sufficient or satisfactory in nature. Moreover the discretion should not be used in casual and routine
manner as well as render the relevant provision of law make ineffective or nugatory as laid in salem bar judgment(supra).â€
From the aforesaid conclusion, it appears that the plaint of the petitioners has been considered in detail by the learned Judge and then passed an
order. On the contrary, it has been clearly observed that suit to be expedited and this has proceeded further in which on 25.9.2017, the chief
examination was conducted and thereafter it appears that on 20.1.2018, the application came to be submitted. It further appears that after byÂparte
hearing, when the defendant came to know in the month of July7, 2014 has specifically preferred an appeal against the order of injunction and at that
stage, i.e. in April, 2017, it was very much within the knowledge of the petitioners about the exÂparte proceedings even if it took place. When the
appeal came to be dismissed on 19.4.2017, even at that stage, there was a full knowledge of the petitioners and on the contrary, in the appeal filed by
the petitioners themselves, suit was ordered to be expedited and still, however, the present application has been preferred after more than a period of 9
months and as such, if the date and the dates and days to be counted as per the statutory provisions of Order 8, then the summons were served on
30.12.2012 and inspite of maximum period of 90 days, present application has been submitted only on 20.1.2018 i.e. practically after more than a
period of six years and as such, in no case, the explanation found to be sufficient enough and rightly the learned Judge has not accepted the same. In
the background of aforesaid situation, an attempt was made to cite the judgments by learned advocates appearing for the respondents original
plaintiffs to contend that statutory time limit is held to be mandatory. It has been submitted that originally, it was construed as directory and in a given
case can be permitted but later on Three Judges Bench of Hon'ble Apex Court has clearly held that same is mandatory and beyond maximum period,
it cannot be permitted. A reference is made to a decision of Hon'ble Apex Court in the case of New India Assurance Company Limited Vs. Hilli
Multipurpose Cold Storage Private Limited reported in 2015(0) AIJELÂSCÂ57404 [Three Honourable Judges' Bench). The relevant observations
contained after considering earlier decisions, since considered, deserve to be quoted hereinafter:
“4. The question arose in the case of Dr. J.J. Merchant (supra) whether the Forum can grant time beyond 45 days to the opposite party for filing
its version. After considering the aforestated section in the light of the object with which the Act has been enacted, a three Judge Bench of this
Court came to the conclusion that in no case period beyond 45 days can be granted to the opposite party for filing its version of the case.
xxxx
After considering the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and several other judgments pertaining to grant of time
or additional time for filing written statement or reply, in the interest of justice, this Court came to the conclusion that the provisions of Order VIII Rule
1 C.P.C. are not mandatory but directory in nature and therefore, in the interest of justice, further time for filing reply can be granted, if the
circumstances are such that require grant of further time for filing the reply.
xxxx
The learned counsel also referred to a judgment delivered in the case of Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33]. This Court
was faced with the same issue in the aforestated case. After discussing the provisions of Section 13(2) of the Act, this Court came to the conclusion
that procedural rules should not be considered as mandatory in nature. In the said case, ultimately, this Court came to the conclusion that provision
contained in Section 13(2)(a) of the Act is procedural in nature. According to the said judgment, the object behind enactment of the Act is speedy
disposal of cases pending before the District Forum and therefore, it has been provided that reply should be filed within 30 days and the extension of
time may not exceed 15 days. It has been further observed that no penal consequences have been provided in the case of extension of time beyond 15
days and therefore, the said provision with regard to extension of time beyond a particular limit is directory in nature and that would not mean that
extension of time cannot exceed 15 days.
Relying upon the said judgment and the judgment delivered in the case of Kailash (supra), the learned counsel submitted that as Dr. J.J. Merchant
(supra) has not been followed in a later case though it was considered in the case of Kailash (supra), the correct legal position would be to treat the
said provision with regard to maximum period for filing the reply is directory and not mandatory.
xxxx
We are, therefore, of the view that the judgment delivered in the case of Dr. J.J. Merchant (supra) holds the field and therefore, we reiterate the
view that the District Forum can grant a further period of
15 days to the opposite party for filing his version or reply and not beyond that.
There is one more reason to follow the law laid down in the case of Dr. J.J. Merchant (supra). Dr. J.J. Merchant (supra) was decided in 2002,
whereas Kailash (supra) was decided in 2005. As per law laid down by this Court, while deciding the case of Kailash (supra), this Court ought to have
respected the view expressed in Dr. J.J. Merchant (supra) as the judgment delivered in the case of Dr. J.J. Merchant (supra) was earlier in point of
time.
The aforestated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in Dr. J.J. Merchant (supra)
should be followed.
xxxx
In view of the aforestated clear legal position depicted by a fiveÂJudge Bench, the subject is no more res integra. Not only this threeÂJudge
Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash (supra), was bound by the view taken by a
threeÂJudge Bench in the case of Dr. J.J. Merchant (supra).
In view of the aforestated legal position, we are of the view that the law laid down by a threeÂJudge Bench of this Court in the case of Dr. J.J.
Merchant (supra) should prevail. The Reference is answered accordingly.â€
Even in one of the decisions delivered by Gujarat High Court reported in 2009(3) GLR 2513 in the case of Jaswantsinh Alias Kali S/o Sardar
Ramsingh Indrasingh Vs. Indravadan Chhaganlal Thakar, it has been held that while construing provision of a Statute precisely Order 8 Rule 1 no
doubt is directory but the said time limit cannot be so lightly extended in a routine manner and, therefore, the relevant observations contained therein
deserve to be quoted hereinafter:
“The Court has wide power to “make such order in relation to the suit as it thinks fit.†clearly, therefore, the provision of Order 8 Rule 1
providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to
file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne
in mind that the legislature has fixed the upper timeÂlimit of 90 days. The discretion of the court to extend the time shall not be so frequently and
routinely exercised so as to nullify the period fixed by Order 8 Rule 1.â€
Additionally in this very decision, right to submit written statement was closed down and in that context, the Special Civil Application was dealt
with and the Court found that there is no error committed of any nature to call for any interference and hence, in the context of exercise of extraÂ‐
ordinary jurisdiction also, few observations made deserve to be quoted, hence, reproduced hereinafter:
“5.7 The factual matrix of that case is totally different from that obtaining in the present case. The proposition of law enunciated in the quoted
judgment, though not disputed, will not be applicable to the present case, as here, there is a delay of more than seven years in filing the written
statement, and the trial has already begun. In addition thereto there are no convincing reasons for the delay caused. Only a vague and casual
explanation has been advanced which is not sufficient or satisfactory. The power to extend the time for filing a written statement cannot be exercised
in a casual or routine manner, as will render the relevant provisions of law ineffective or nugatory. The impugned order is well considered and has
taken note of the above aspects. The interference of this Court is, therefore, not warranted.
5.8 Considering the aboveÂmentioned aspects and the legal position as enunciated in “Salem Advocate Bar Association, T.N.â€(Supra), there is no
infirmity, perversity or manifest error in the impugned error so as to warrant interference. While exercising jurisdiction under Article 227 of the
Constitution of India, the Court does not sit as an appellate Court or reÂevaluate the evidence on record. In “B.K. Muniraju Vs. State of
Karnataka and Ors.“ (2008)4 SCC 451, the Apex Court observed as under,
“24. It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on
clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory
jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences
or correct errors of mere formal or technical character.â€â€
12.1 One another additional circumstance which cannot be unnoticed by the Court is that even in a recent pronouncement in case of Estate Officer,
Haryana Urban Development Authority & Anr. v. Gopi Chand Atreja, reported in AIR 2019 SC 1423, while dealing with the issue of limitation, the
Apex Court has observed that even the lawyer if not taking timely steps, the same shall not be treated always justifiable cause for delay and by
assigning and enlisting the circumstance, the Apex Court has not condoned the delay of 4 years and 6 months, whereas herein the instant case, there
is a delay of 6 years.
The observations contained in Para.6 to 21 since are relevant, quoted hereinafter :
“6. The appellants felt aggrieved and filed second appeal in the High Court of Punjab & Haryana at Chandigarh. Since the appeal filed by the
appellant was barred by 1942 days, the appellants filed an application under Section 5 of the Limitation Act and prayed for condoning the delay in filing
the second appeal.
By impugned order dated 23.01.2008, the High Court rejected the application and declined to condone the delay. The High Court held that the cause
pleaded by the appellants for condoning the delay is not a sufficient cause. As a consequence, the second appeal was also dismissed as being barred
by limitation.
Challenging the said order, the appellants filed a review petition. By order dated 05.02.2008, the High Court also dismissed the review petition.
Against the orders dated 23.01.2008 and 05.02.2008, the appellants(defendants) have filed these appeals by way of special leave in this Court.
So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants’
second appeal on the ground of limitation.
In other words, the question arises for consideration in these appeals is whether the High Court was justified in not condoning the delay of 1942
days in filing the second appeal by the appellants(defendants).
Heard Mr. Vishwa Pal Singh, learned counsel for the appellants and Mr. Gagan Gupta, learned counsel for the respondent.
Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.
In our view, the delay of 1942 days in filing the second appeal in the High Court was rightly not condoned by the High Court for the reasons
mentioned below.
First, the delay was inordinate; Second it was not properly explained; and Third, the ground alleged in support of application filed under Section 5
of the Limitation Act did not constitute a sufficient cause.
The appellant HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well established legal
department to look after the legal cases filed by HUDA and against the HUDA in various Courts. They have panel of lawyers to defend their interest
in Courts.
It is not in dispute that the appellants had been contesting the civil suit and the first appeal since inception. The appellants were, therefore, fully
aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long
time and not to file the appeal within 90 days or/and refile it immediately after curing the defects.
If, according to the appellants HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it
cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.
In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that
their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that
the appeal be filed in time by another lawyer.
In our view, it is a clear case where the appellant HUDA, I.e., their officers, who were incharge of the legal cell failed to discharge their duty
assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. In such circumstances, the officers incharge of
the case should be made answerable for the lapse on their part and make good the loss suffered by the appellants HUDA.
A delay of 1942 days (4 years 6 months), in our view, is wholly inordinate and the cause pleaded for its condonation is equally unexplained by the
appellants. In any case, the explanation given does not constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. It was,
therefore, rightly not condoned by the High Court and we concur with the finding of the High Court.â€
In the aforesaid premise and in view of the facts which are noted down hereinbefore, this is not a fit case in which any interference in extraÂ‐
ordinary equitable jurisdiction deserves to be exercised. No doubt, extraÂordinary jurisdiction is wide enough to correct the error of court below but
then when the court below has undertaken an exercise after due application of mind, after considering relevant proposition of law and after analyzing
factual background, in the absence of any perversity, no extraÂordinary jurisdiction deserves to be exercised in considered opinion of this Court.
Hence, no case is made out to call for any interference.
However, while parting with the present order, it appears that in this case, on account of pendency of the suit proceedings, a situation has erupted
that the petitioners are under an obligation to continue to supply without there being any documentation with the original plaintiff, according to their
policy, but since the trial of the suit has commenced, the Court is not in a position to hold out the petitioners for their own conduct but in a peculiar
situation like this, since the trial of the suit has commenced, same is directed to be completed within a period of six months from the date of receipt of
this order considering the fact that suit proceedings are of 2012. The Court is of the clear opinion that statutory provisions and its object must be given
full effect and keeping the object underlying Order 8 Rule 1 of CPC, the Court is of the opinion that this much negligence of six years' period not
innocent in nature cannot be given a lenient view. Irrespective of its consequence, the Court is not in a position to undermine the object of the
provision. With the aforesaid observations and directions, the petition stands dismissed with no order as to costs.