Kalpanaben S. Gandhi and 1 vs Shivani Apartment Cooeprative Housing Society Limited and 1

Honourable Mr. Justice M.R. Shah

Present petition, under Article 227 of the Constitution of India has been preferred by the Petitioners - original Appellants/defendants to quash and set aside the impugned order passed by the learned Gujarat State Cooperative Tribunal, Ahmedabad in Misc. Application No. 311 of 2009 dtd.15/3/2011 in Appeal No. 643 of 2002, by which the learned tribunal has refused to condone the delay caused in preferring the appeal challenging the ex-parte judgement and award dtd.28/5/2002 passed by the learned Board of Nominees, Ahmedabad in Lavad Suit No. 293 of 2002 and dismsised the restoration application.

Mr. Patel, learned advocate appearing on behalf of the Petitioners has vehemently submitted that as such the learned tribunal has materially erred in not condoning the delay caused in preferring the appeal. It is submitted that the learned tribunal has taken too technical view while considering the application submitted by the Petitioners to condone the delay and restoration application. It is submitted that, as such, for the negligence on the part of the learned advocate in not informing the Petitioners with respect to judgement and award passed by the learned Board of Nominees, the Petitioners ought not to have been punished. It is submitted that as such, there was no malafide intention on the part of the Petitioners in not challenging the judgement and award passed by the learned Board of Nominees within the stipulated period of limitation, before the learned tribunal. It is submitted that as such, by not preferring the appeal within the stipulated time, the Petitioners were not likely to gain anything. Therefore, it is requested to condone the delay and allow the restoration application on imposing reasonable costs.

Present petition is opposed by Mr. Pushpadatta Vyas, learned advocate appearing on behalf of the Respondent No. 1. He has submitted that the conduct on the part of the Petitioners do not deserve a liberal view in favour of the Petitioners to condone the delay and to allow the restoration application. It is submitted that, in fact, the judgement and award passed by the learned Board of Nominees was challenged by way of an appeal, however, the said appeal was dismissed for default. It is submitted that even subsequently despite the judgement and award passed by the learned Board of Nominees, the Petitioners continued to put up the construction, for which contempt proceedings were initiated by way of Contempt Application No. 52 of 2009 and only thereafter the Petitioners have submitted application for restoration of the appeal and for condonation of delay.

Mr. Pushpadatta Vyas, learned advocate appearing on behalf of the Respondent No. 1 has stated at the bar that if this Court is inclined to allow this petition on imposing reasonable cost to paid to the Respondent No. 1, he does not invite reasoned order.

Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned order passed by the learned tribunal, in fact, the Petitioners had preferred appeal against the judgement and award passed by the learned Board of Nominees, however, the same came to be dismissed for default under Regulation No. 15, which was not within the knowledge of the Petitioners. It is the case on behalf of the Petitioners that their advocate did not inform the Petitioners with respect to dismissal of the said appeal for default and only when the Contempt Application No. 52 of 2009 was filed on 18/9/2009, the Petitioners came to know about the dismissal of the appeal for default. Considering the impugned order passed by the learned tribunal it appears that the learned tribunal has taken too technical view and has not properly considered the facts that normally litigant is to be given opportunity to submit the case on merits rather than non-suiting on the technical ground of delay and laches. The learned tribunal ought to have appreciated that by not preferring the application for condonation of delay and/or restoration application to restore the appeal which was dismissed for default, the Petitioners were not likely to be benefitted and it cannot be said that there was malafide intention on the part of the Petitioners in not getting the appeal restored which was dismissed for default and in not submitting the restoration application within the stipulated time. In the facts and circumstances of the case, it appears that on imposing reasonable cost, which the learned advocate appearing on behalf of the Petitioners has agreed to pay to the Respondent No. 1, the delay caused in preferring restoration application can be condoned as well as restoration application can be allowed and tribunal is to be directed to decide the appeal in accordance with law and on merits.

In view of the above and for the reasons stated above and as to enable the Petitioners to submit the case on merits, the impugned order passed by the learned Gujarat State Cooperative Tribunal, Ahmedabad in Misc. Application No. 311 of 2009 dtd.15/3/2011 is hereby quashed and set aside and delay is condoned and Restoration Application is hereby allowed and Appeal No. 643 of 2002 is hereby ordered to be restored on the files of the Gujarat State Cooperative Tribunal on condition that the Petitioners shall pay directly to the Respondent No. 1 - Society a sum of Rs. 10,000/- (Rupees Ten Thousand only) by way of a Demand Draft, within a period of three weeks from today and on production of the receipt for the same, the learned tribunal to decide and dispose of the main appeal in accordance with law and on merits. So far as the contention on behalf of the Respondent society that after the appeal was dismissed for default, the Petitioners have put up some further construction contrary to the judgement and award passed by the learned Board of Nominees, is concerned, it will be open for the Respondent No. 1 Society to submit appropriate application before the learned tribunal, which shall be considered by the learned tribunal on its own, in accordance with law and on merits and/or it will be open for the Respondent No. 1 to pursue the contempt proceedings being Contempt Application No. 52 of 2009, which shall be considered by the tribunal in accordance with law and on merits, for which also this Court has not expressed any opinion on merits. Rule is made to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.