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Judgment
,,
A.J. Shastri, J",,
Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs:-,,
“[A] Your Lordships may be pleased to admit and allow the present petition.,,
[B] Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ/s, order/s, and/or,",,
direction/s, quashing and setting aside the impugned order dated 28.9.2018 passed by the learned Additional District Judge, Rajkot in Misc. Civil",,
Application No.63 of 2018 and consequently direct the learned District Court, Rajkot to entertain, hear, decide and dispose of the Appeal of the",,
petitioner herein against the ex-parte Judgment and Decree passed by the learned Principal Senior Civil Judge, Rajkot in Special Civil Suit No.214 of",,
2014 dated 21.4.2017, on merits, and without raising the objection of delay in preferring Appeal.",,
[C] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the further proceedings of the Special",,
Execution Petition No.4 of 2017 pending in the court of learned Principal Senior Civil Judge, Rajkot and further be pleased to direct the respondent to",,
maintain status-quo and not to evict the petitioner from the peaceful possession of the suit land and not to restrain the petitioner from cultivating the,,
suit land in question and not to disturb the peaceful possession of the petitioner in any manner whatsoever.,,
[D] …..........â€,,
The case of the petitioner is that the respondent herein filed Special Civil Suit No.214 of 2014 for seeking specific performance of the agreement to,,
sell executed by the petitioner in favour of the respondent for an agricultural land bearing Revenue Survey No.22 Paiki-2 admeasuring 2-10-44,,
Hectare-Are-Sq. Mtrs., situated at village Madhvipur, Taluka Jasdan, District Rajkot. The petitioner pursuant to the summons having been issued",,
engaged an advocate Mr. Nileshbhai B. Kakadiya, who filed his Vakalatnama, but unfortunately, he died in the year 2014 itself. After elapse of him,",,
his colleague advocate did not take care of the matter and had not informed the defendant, i.e. the present petitioner, about the proceedings of the suit",,
as well as the death of his lawyer, which resulted into proceeding of the suit ex-parte, in which learned advocate at the relevant point of time had not",,
filed even reply. Since the reply was not filed, learned Judge treated the case as uncontested and ultimately, an ex-parte judgment and decree came to",,
be passed on 20.4.2017, wherein direction was given to execute sale deed of the suit land on receipt of remaining sale consideration of Rs.3 lac as",,
Rs.7 lac allegedly have been paid and further directed to handover the possession by permanently injuncting the defendant from selling, mortgaging or",,
transferring the suit land in any manner.,,
It is further the case of the petitioner that the petitioner was not aware of such ex-parte decree being passed and thereafter, when the notice came",,
to be received by the petitioner from the Executing Court, the petitioner â€" defendant realized about the ex-parte judgment and decree. Execution",,
petition was filed in the form of Special Civil Execution Petition No.4 of 2017. The petitioner wanted to prefer an appeal, as a result, with immediate",,
effect, applied for certified copy on 13.3.2018. But, then, as per learned advocate, there arose delay in preferring an appeal. Resultantly, an application",,
for seeking condonation of delay of 338 days came to be filed. Detailed circumstances have been narrated to explain the delay; viz. that learned,,
advocate though filed Vakalatnama at Exh.8 had not appeared nor filed reply and after his death in the year 2014, even his colleague had not taken",,
any step either to inform the defendant or to attend the proceeding. Additionally, it has also been submitted that the petitioner is an illiterate person, he",,
is merely an agriculturist, residing hundred kilometer away from Rajkot and was not aware about the death of the advocate and as soon as the",,
petitioner came to know about the fact of ex-parte decree, immediate steps have been taken to approach the Court concerned for getting the certified",,
copy of the judgment and decree on 13.3.2018, which came to be received on 17.3.2018. However, learned advocate took some time to prefer the",,
appeal. It has also been submitted that this land in question is the only avenue for generating income for maintaining the family and if the delay is not,,
condoned, not only the appeal will become infructuous but serious prejudice will be caused to the petitioner and therefore, by referring to such",,
contentions and submissions, an application for delay came to be preferred. However, unfortunately, learned Additional District Judge, Rajkot vide",,
order dated 28.9.2018 was pleased to reject the request of condonation of delay, as a result of this, this order which has been passed in Misc. Civil",,
Application No.63 of 2018 dated 28.9.2018 is made the subject matter of challenge before this Court by way of the present Special Civil Application.,,
The Court, originally, before issuance of the notice had called upon the petitioner to produce the copy of the rojkam of the Special Execution",,
Petition, vide order dated 5.12.2018, and thereafter, after perusal of the said rojkam copy as well as the application Exh.21, was pleased to pass an",,
order issuing notice as well as granting interim relief in terms of para 15(C). The said order reads as under:-,,
“Learned advocate for the petitioner is directed to produce on record copy of application Exh.21 and Rojkam with the Registry within two days,,
from today.,,
Issue notice to the respondent making it returnable on 5.2.2019. Meanwhile, relief in terms of para 15(C) is granted.â€",,
Pursuant to such order, the respondent appeared and submitted affidavit-in-reply opposing the present petition and with this background, the present",,
petition has come up for consideration before this Court, in which learned advocate Mrs. Nasrin N. Shaikh has appeared for the petitioner, whereas",,
learned advocate Mr. Bhaumik Dholariya has represented the respondent.,,
Learned advocate Mrs. Nasrin Shaikh appearing for the petitioner has submitted that the petitioner is an illiterate agriculturist, residing",,
approximately hundred kilometer away from Rajkot and was not in a position to take track of the case since learned advocate was already engaged to,,
represent him. Unfortunately, learned advocate Mr. Nileshbhai Kakadiya, who had filed his Vakalatnama, did not take any step and in the year 2014",,
has expired. After expiration of this main advocate, colleague advocate of him did not take any step either to inform the petitioner or to take",,
appropriate step to represent the petitioner in the case. Unfortunately, the petitioner was not informed about the proceedings since the petitioner is",,
residing hundred kilometer away from Rajkot. Hence, on account of such reasons, the delay ought to have been condoned by the Court below and the",,
impugned order be set aside in the interest of justice. It has further been contended that the appeal is a statutory right of a litigant and therefore, same",,
be allowed to be utilized and instead of hyper-technicality as far as possible, the appeal proceedings be allowed to be processed on merit. It has further",,
been submitted that the right from 1984 onwards, the Apex Court in catena of decisions has propounded that delay is to be construed liberally and",,
when there is a conflict between the substantial justice and technical consideration, substantial justice must be given a predominance. Hence, keeping",,
in view this salutary position propounded by series of decisions, learned Judge ought to have condoned the delay so as to allow the petitioner to",,
prosecute the appeal on merit. Learned advocate has further contended that basically, the original judgment and order is an ex-parte order as learned",,
advocate of the petitioner did not participate in the proceedings, which has resulted into serious injustice and this land in question is the only surviving",,
avenue to maintain the family and therefore also, reasonable chance to defend deserves to be granted and at least, the Appellate Court, who is also",,
equally vested with the power to examine the issue, be allowed to deal with the appeal on merits. Hence, delay of 338 days ought to have been",,
condoned.,,
Sr. No.,Date,Event
1,01/03/13,Registered A to S executed by the defendant in favour of the plaintiff
2,07/11/14,The plaintiff filed Special Civil Suit No.214/2014 against the defendant.
3,06/12/14,"oint Vakalatnama filed by three Advocates (Exh.8.)
Adjournment Application by Advocate B.H. Sanghavi (Exh.9)
4,09/03/15,"Application Exh.11 by Plaintiff to close the right/ stage of Defendant to file
Written Statement after waiting for three dates.
5,24.3.2015,Application at Exh.11 Allowed.
6,14.5.2015,Application at Exh.12 to close the right of Argument of Defendant of Exh.5.
7,25.5.2015,"Application at Exh.12 to close the right of Argument of Defendant of Exh.5
Allowed.
8,03/07/15,"Application of the plaintiff at Exh.5 for temporary injunction came to be
allowed.
9,14.7.2015,Entry No.1131 mutated with respect to Lis Pendence/ Exh.5 Order.
10,24.9.2015,Entry No.1131 Certified.
11,29.12.2015,Advocate Shri Nilesh Kakadiya passed away.
12,21.4.2017,Special Civil Suit No.214/2014 Allowed.
13,21.7.2017,"The Plaintiff through his advocate issued Notice to accept the remaining
amount of consideration & to execute the Regd. Sale Deed. Served.
14,24.8.2017,The plaintiff filed Special Execution Petition No.4/2017 against the defendant.
15,"Approx. in the end of Feb.
2016","The defendant came to be served with notice of execution petition. (specific
date not pleaded by defendant).
16,27.3.2018,"The defendant filed CMA No.63/2018 before District Court, Rajko
challenging the Judgment dated 21.4.2017.
17,06/09/18,"Application at Exh.20 to accept the remaining amount of consideration and to
execute the Sale-deed, etc.
18,14.9.2018,Application at Exh.20 came to be allowed.
19,27.9.2018,"Application by the plaintiff at Exh.21 to pay the amount of costs, etc.
20,17.9.2018,Regd. Sale-deed executed by Court Commissioner in favour of plaintiff.
21,28.9.2018,C.M.A. No.63/2018 came to be rejected.
22,03/12/18,S.C.A. No.1873/2018 filed before this Hon'ble Court.
23,05/12/18,"This Hon'ble Court directed the defendant to produce copy of the Rojkam o
Special Execution Petition No.4 of 2017 on the next date of hearing.
24,14.12.2018,"This Hon'ble Court directed the learned Advocate for the defendant to
produce on record copy of application Exhibit 21 and Rojkam with the registry
within two days and meanwhile relief in terms of para 15(C) was granted.
Court, the Court is of the considered opinion that the impugned order dated 28.9.2018 is hereby quashed and set aside and the delay of 338 days which",,
has occurred in preferring a substantive appeal is hereby condoned and learned Appellate Judge is requested to hear and dispose of the main appeal,,
on merit in accordance with law and it is made clear that while disposing of the appeal, learned Appellate Judge may also keep in mind the subsequent",,
event which has been projected by the respondent.,,
It is made clear that this Court has not opined anything on merit of appeal in any form and it is independently left it open to learned Appellate,,
Judge to deal with and dispose of the substantive appeal on merit in accordance with law. With these observations the petition stands allowed with no,,
order as to costs.,,
Since the main petition is disposed, no order in the Civil Application is required. Hence, the Civil Application stands disposed of accordingly.",,