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Judgment
D.N. Patel, J.—These Civil Applications have been preferred for condonation of delay of 296 days in preferring Appeal from Order against the judgment and order dated 24th August,2006 below Exh-28 and 29 in Civil Suit No. 767 of 2005 passed by the learned City Civil Court at Ahmedabad. An operative part of the impugned order, reads as under:
Considering above facts and circumstances, I pass the following order:
ORDER
(i) Chamber Summons is allowed. Issue notice on defendant No. (1) Kanubhai Ranchhodbhai Patel, No. (2) Manubhai Ranchhodbhai Patel, and No. (3) Dayarambhai Ranchhodbhai Patel to remain present in the court personally and explain the circumstances as to why their property should not be attached and sent in Civil imprisonment upto three months for violation of undertaking and consequently for breach for disobedience of the order of the court as per Order XXXIX, Rule 2A r.w. Section 151 of CPC?
(ii) Issue notice on defendant Nos. (4/1) Smt. Neetaben wd/o. Shri Maheshbhai Patel, (4/2) Bhumika Maheshbhai Patel, and (4/3) Fevil Maheshbhai Patel as to why the property received by them by way of inheritance or succession from the deceased defendant No. 4 should not be attached for violation of undertaking and consequently breach or disobedience of the order of the court as per Order XXXIX, Rule-2A r.w. Section 151 of CPC?
(iii) Issue notice on purchasers (1) Harish Kantibhai Patel, (2) Mukesh Kantibhai Patel and (3) Bharat Kantibhai Patel as to why the property bearing Survey No. 330 admeasuring 7183 sq. mtrs. situated at village: Hansol, district and subdistrict Ahmedabad should not be attached?
(iv) Notice returnable on 6-9-2006.
Dictated and pronounced in open court today on this 24th day of August, 2006 at Ahmedabad.
Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, it appears that:
(i) The present respondent is an original plaintiff, who has instituted Civil Suit No. 767 of 2005 for specific performance, of an agreement to sell. The suit was instituted on 20th April,2005.
(ii) It is contended by the learned advocate appearing on behalf of the original defendants that an application was preferred on 4th May,2005 for adjournment for filing written statement, and that while giving a purshis for adjournment on 4th May,2005, lawyer who appeared on behalf of the present applicants-appellants (original defendants) mentioned that
(a) he is engaged as a lawyer on 4th May,2005;
(b) he has to receive instructions and documents from the present applicants-appellants (original defendants); and
(c) that therefore, he prays for an adjournment before the Trial Court.
Thus, it was vehemently contended that a lawyer in his application mentioned that till reply is filed, the property will not be transferred. On one hand, a lawyer says that he has no instruction, he has yet to receive the instructions, he has yet to receive documents, he was engaged as a lawyer on the very same day and, therefore, he was asking for adjournment and on the other hand, he also made statement that the property will not be transferred till the reply is filed. This sentence in the adjournment application is a bone of contention because this sentence was added by the lawyer on the very first day.
(iii) It appears that thereafter, defendant No. 4, who was handling the matter on behalf of all the defendants, has expired on 11th July,2005. This lawyer promises on the very first day, without any instruction and without any document, on behalf of the defendants, remained on the record. The concerned Defendant No. 4 has expired and thereafter, the property was transferred on 15th July, 2005.
(iv) It appears that an application was moved below Exh-29 on 7th October,2005 by the present respondent (original plaintiff) under Order XXXIX Rule 2-A of the Code of the Civil Procedure,1908, for initiating contempt proceedings. Chamber summons was taken out against the present applicants-appellants (original defendants).
(v) It appears that the notice has been issued by the Trial Court, upon the original defendants and purchaser of the property on 24th August,2006 and the operative part, has been mentioned herein above, in para-1.
(vi) It appears that the present applicants-appellants (original defendants) thereafter, have also participated in the proceedings and several dates were given, even after the impugned order is passed. It appears that the applicants appellants are farmers. They narrated themselves as illiterate. Defendant No. 4 was dealing with the case, on behalf of all the defendants. Defendant No. 4 has expired on 11th July,2005 and looking to the aforesaid operative part of the impugned order, the present applicants-appellants (original defendants) were of the opinion that still there will be arguments and hearing on the point that Whether there is any contempt or not. But ultimately, they realized that the Trial Court has issued Notice on 24th August,2005 for the quantum of punishment. Thus, contempt is already established and, therefore, they have preferred the present Appeals from Order one by the original defendants (Appeal from Order No. 263 of 2007) and another by purchaser of the property (Appeal from Order No. 264 of 2007). Thus, there is a delay of 296 days in preferring these Appeals from Order from 24th August,2006.
(vii) It appears from the facts of the case that no deliberate delay has been caused in preferring the aforesaid two Appeals from Order. There is no malafide on their part nor they are going to be benefitted by causing delay. From the aforesaid operative part of the impugned order, it appears that the present applicants, who are mainly engaged in agricultural operations, were under belief that this is a notice given by the Trial Court as to whether they are guilty for contempt or not. It is contended that there was a belief and/or mistaken interpretation on the part of the present applicants or they have not properly understood the order passed by the Trial Court dated 24th August,2006 nor they have understood the consequences of this order and they were under the belief that they will appear at the time of hearing and will point out to the Court a promises given by the lawyer, on the very first day, when he is asking for adjournment for filing written statement does not tantamount to an order passed by the Trial Court and, hence, violation thereof, is not covered under Order XXXIX Rule 2A of Code of Civil Procedure,1908. Thus, the applicants-appellants (original defendants) are under the belief that they will point out, in detail, the aforesaid pivotal point before the Trial Court.
(viii) It appears from the facts that different High Courts have taken different views on the aforesaid aspect, which has been narrated at length in the impugned order. As this is only delay condonation application stage, this Court is not much going into the detail. Suffice it will be to say that there is no malafide delay, on the part of the present applicants-appellants (original defendants) and if the delay is not condoned, grave irreparable injustice will be caused.
(ix) Learned counsel for the applicants-appellants (original defendants) has relied upon the decision rendered by the Hon''ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, especially para 12 & 13, read as under:
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words �Ssufficient cause�� u/s 5 of the Limitation Act, should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality.
It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the part deliberately or gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.
In view of the aforesaid decision and looking to the facts of the case, there are reasonable reasons for condonation of delay. There is no deliberate delay on the part of the present applicants, as stated herein above and looking to the applicants'' themselves, who are engaged mainly in agricultural operations, this delay has been caused because of misunderstanding of the order and misinterpretation of the order or because no proper advice was given to the applicants. No sooner did the impugned order dated 24th August,2006 come to be passed, i.e., notice for fixing quantum of punishment for the contempt, under Order XXXIX Rule 2A of the Code of Civil Procedure,1908 and understanding the consequences, they have immediately filed these Appeals from Order. Purchasers were not even party to the suit. No notice to purchasers of any stay order or of any statement made by lawyer (not engaged by purchaser). Therefore, they have also preferred Appeal from Order with delay condonation application. This delay also required to be condoned.
Learned counsel for the respondent (original plaintiff) has vehemently submitted that the applicants-appellants (original defendants) are not semi-illiterate persons but they have studied in the School and have relied upon the documents at Exh-45/2, 45/3 and 45/4. Learned counsel for the respondent has pointed out that there are several adjournments, even after the impugned order is passed, by the Trial Court and, therefore, delay may not be condoned. None of the contentions canvassed by the learned Counsel for the respondent, is accepted by this Court in this case, for the reason that those who have studied in the School are not capable enough to understand the complexity of the impugned order. Because of the misinterpretation or misreading of the impugned order as well as defendant No. 4 has expired, who was dealing with court matter, on behalf of all the defendants, in my opinion, delay deserves to be condoned.
As a cumulative effect of the aforesaid facts and reasons, these civil applications are allowed. Delay of 296 days in preferring the aforesaid two Appeals from Order is hereby condoned. Rule made absolute, with no order as to costs. The Registry is hereby directed to enlist these two Appeals from Order on admission board on 10th March, 2008.