As the impugned order has been passed against the
applicant herein who wants to prefer Appeal from Order,
has definitely a legal right to challenge the order of the
trial Court by way of filing Appeal from Order. At this stage
only the point needs to be considered as to whether the
delay occurred in preferring the said Appeal from Order is
well explained or not. Now as the legal settled proposition
which has been set-out here-in-above, considering the
prevalent economy condition of the parties as well as even
of the Country, the financial crisis can be considered to be
one of the grounds for condonation of delay. The pivotal
point of consideration would be whether the parties
concerned has taken dilatory tactics in proceeding with the
matter for initiated any proceedings or whether there is a
malafide on his part or not. If there is a malafide attributed
and established against the party concerned, then
definitely even shortest delay cannot be condoned. It
cannot be presumed that a person against whom an interim
injunction is operating, would adopt dilatory tactics except
in case of compelled circumstances or circumstances out of
his control, he may not be in a position to initiate or
execute or take appropriate immediate steps against the
injunction operating against him. Therefore, it cannot be
presumed that the applicant was not proceeding with the
matter bonafidely or there was dilatory tactics on his part
in initiating the proceedings of Appeal from Order against
the impugned order of injunction which is operating
against him. Therefore, in present case, the applicant has
made out sufficient cause for condonation of delay of 399
days occurred in preferring Appeal from Order. If
application is condoned, no prejudice is likely to be caused
to the other side and the other side would also get
appropriate opportunity if Appeal from Order is preferred.
{Para 14}
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 941 of 2020
NANDLAL NAMDEV OTWANI Vs VIJAY JAYPRAKASH AHUJA
CORAM: DR. JUSTICE A. P. THAKER
Date : 15/02/2022
1. The original defendant No.4 has preferred this Civil
Application for condonation of delay of 399 days caused in
preferring Appeal from Order which he propose to file
against the order dated 20.11.2018 passed below Exh-6/7
in Civil Suit No. 482 of 2016, whereby he has been
restrained from transferring, alienating or creating interest
of any third party in respect of suit property till final
disposal of the suit.
2. The applicant has submitted that he was suffering from
financial crisis and he had no funds to challenge the
impugned order nor did he has funds to develop the
subject land. He has submitted that now he has gained
some financial strength through help of friends and
relatives and. Therefore. he is contemplating development
of the subject land either himself or through some
developer. He has submitted that due to such financial
crises, delay has occurred.
2.1 It is also contended that refusing to condone the delay will
result in a meritorious matter being thrown out at the very
threshold and cause of justice being defeated. It is also
contended that if the delay is condoned, the respondent
will not be affected and justice will be done to both the
parties on merits. It is also contended that there has never
been any intention on his part to flout any legal provisions
or legal formalities and despite the best efforts on his part,
delay has been caused only because of the circumstances
beyond control. While reciting the decision of the Apex
Court in N. Balakrishnan v. M. Krishnamurthy, reported in
AIR 1998 SC 3222 and State of Haryana v. Chandramani and
Ors, reported in 1996 3 SCC 132. It is prayed by the
applicant to condone the delay of 399 days occurred in
preferring the Appeal from Order.
3. The respondent No.1 has resisted the application and has
submitted that delay is of about more than 1 year and the
reason advanced for seeking condonation of inordinate
delay of having financial crisis is not acceptable. It is also
contended that there is not a whisper in the entire
application as to how and when the applicant came out of
such alleged financial crisis, if at all there were financial
crisis as alleged. It is also submitted that the application is
too vague and evasive as no particulars are furnished and/
or any documentary evidences produced in support of the
alleged cause advanced for seeking condonation of delay. It
is also averred that total inaction, negligence and want of
bonafides on the part of the applicant in the matter. It is
also submitted that no sufficient cause has been shown by
the applicant for condonation of delay and there is more
than one year delay and, therefore, it is required to be
rejected.
3.1 By way of narrating the facts of the suit, it is contended by
him that the trial Court has granted injunction against the
appellant after considering the admitted position and
considering the documentary evidence as well as pleadings
involved in the matter. It is also contended that the suit
property is an ancestral property purchased by deponent’s
grandfather late Shri Gokuldas Ahuja who has expired on
4.8.2005 intestate after death of his grandfather,
respondent No.2 executed registered sale deed dated
15.3.2011 in favour of the present applicant as he was sole
owner of the property. According to the deponent, he has
undivided share by virtue of birth in the family of the Suit
property as co-parcenor. He has also contended that there
is a clear cut findings by the trial Court that it is nobody’s
case that the execution of the sale deed by his father, was
as a karta of HUF for any legal necessity. He has also
contended that at the time of death of his grandfather, he
was 9 year old and at the time of execution of sale-deed he
was minor and, therefore, he has preferred the suit within 3
years from the date of attaining majority and, therefore,
Civil Suit was preferred within a period of limitation. He has
also submitted that the applicant- appellant hererin has
been permitted to sale/ transfer and / or create interest of
any third party in respect of the suit property, the same
would lead to multiplicity of litigation and, therefore, this
Court may not interfere with the discretionary order issued
by the trial Court. On all these grounds, it is contended by
the respondent No.1 to reject the application on merits.
4. Heard Mr. Jaimin Gandhi, learned advocate for the
applicant, Mr. Ketan Dave, learned advocate for respondent
No.1 and Mr. Sanjay Udhwani, learned advocate for the
respondent Nos. 2 , and 4. The learned advocate for the
respondent No.1 has submitted written submissions along
with citations, which are taken on record. The respondent
No.2 to 4 has also placed written submissions along with
various decisions, which are taken on record, wherein the
stand is taken that there is no sufficient explanation of
delay and it needs to be dismissed.
5. Mr. Jaimin Gandhi, learned advocate for the applicant has
vehemently submitted the facts which are narrated
hereinabove and stated in the application itself. He has
submitted the affidavit-in-rejoinder wherein he has
submitted Statement of Bank Account as well as loan
sanctioned letter from the private institution and other
documents to support his version that there was financial
crisis at his end and, therefore, the delay has occurred. In
the written submissions also the same facts are narrated
along with the extract of the decisions on which he has
placed reliance. He has relied upon the following decisions:
(1) Limbard Pravinsinh Ratansinh v. Takhatsang Banesang
Nakum, delivered in SCA No. 14915 of 2011;
(2) N. Balakrishnan v. M. Krishnamurthy, reported in AIR
1998 SC 3222;
(3) State of Haryana v. Chandra Mani, reported in AIR
1996 SC 1623;
(4) Ram Nath Sao@ Ram Nath Sahu v. Gobardhan Sao,
reported in AIR 2002 SC 1201;
(5) Chhaga Ramabhai v. Heirs of Chhotabhai, reported in
1994 (1) GLH 16;
(6) Narayanlal v. Sridhar Sutar, reported in AIR 1996 SC
2371;
(7) Shri Narayan Bal & Ors v. Sridhar Sutar & Ors, reported
in AIR 2020 Guj 1.
He has prayed to allow the present application.
6. Per contra, learned advocate for the respondent has
submitted the same facts which are narrated in the written
submissions as well as the affidavit filed by the respondent
No.1 and has contended that the delay has not been
properly explained and the documentary evidence
produced by the applicant to show financial crisis does not
reflect that in reality he was in financial crisis. It is also
submitted at bar that this Court should not interfere with
the order of the trial Court, in view of the averment made
in the affidavit-in-reply. While referring to the Bank
Account statement, it is contended by the respondent that
even from the period from February, 2019 to 2.1.2020,
there is no sufficient fund available in the said account. It is
also contended that the applicant has not cared to produce
his profit and loss Account statement for the year 2019-
2020 to indicate as to what was his income during the
relevant period. It is contended that the affidavit produced
by applicant namely Jay Rajendrakumar Patel, has nothing
to do with the relevant period during which the applicant
could not initiate this legal proceedings. It is contended
that even this affidavit clearly suggest that the applicant
wants to create third party interest in the matter with a
view to frustrate the suit, pending before the Trial Court.
According to the respondent, there is no sufficient cause
advanced for seeking condonation of delay. It is prayed to
dismiss the application. The respondent No.1 has relied
upon the following decisions:
1. Balwant Singh (Dead) v. Jagdish Singh and Others,
reported in (2010) 8 SCC 685;
2. Rohit Chauhan v. Surinder Singh & Ors., reported in
AIR 2013 SC 3525;
7. Learned advocate for the respondent Nos. 2 to 4 has
submitted the same facts which are narrated in their
written submissions, wherein the stand is taken that there
is no sufficient explanation of delay and it needs to be
dismissed. The respondent Nos. 2 to 4 has relied upon the
following decision:
1. Mehtab Khan and others v. Khushnuma Ibrahim Khan
and others, reported in (2013) 9 SCC 221;
8. In case of N. Balakrishnan v. M. Krishnamurthy (Supra),
regarding the delay the Court has observed as under:
“It is axiomatic that condonation of delay is a matter of
discretion of the Court. Section 5 of the Limitation Act does
not say that such discretion can be exercised only if the
delay is within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be
uncondonable due to want of acceptable explanation
whereas in certain other cases delay of very long range can
be condoned as the explanation thereof is satisfactory”.
8.1 In Para-10 thereof it is observed that: “The primary
function of a Court is to adjudicate the dispute between
the parties and to advance substantial justice. Time limit
fixed for approaching the Court in different situations is
not because on the expiry of such time a bad cause would
transform into a good cause”.
8.2 In Para-11 it is observed that “Rule of limitation are not
meant to destroy the right of parties. They are meant to
see that parties do not resort to dilatory tactics, but seek
their remedy promptly. The object of providing a legal
remedy is to repair the damage caused by reason of legal
injury. Rules of limitation are not meant to destroy the right
of the parties”.
8.3 In Para-13, it has observed that, “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 party deliberately to gain time then the court should
lean against acceptance of the explanation”. It is observed
that, “while condoning delay the Could should not forget
the opposite party altogether. It must be borne in mind
that he is a looser and he too would have incurred quiet a
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”.
9. In case of Ram Nath Sao@ Ram Nath Sahu v. Gobardhan
Sao (Supra), in para-11 it has been observed that
Acceptance of explanation furnished should be the rule and
refusal an exception more so when no negligence or
inaction or want of bona fide can be imputed to the
defaulting party.
10 In case of Chhaga Ramabhai v. Heirs of Chhotabhai (Supra),
wherein the decision of the Supreme Court in case of Ram
Sumiran and Others v. D. D. C. and Others, reported in AIR
1985 Supreme Court 606 was relied and it was observed
that poverty, ignorance and illiteracy prevalent in this
country of ours, cannot be ignored when the question
regarding the belated action is on the anvil.
11. Heard learned advocate for the parties. Perused the
material placed on record and decisions relied by both the
sides.
12. At the outset it needs to be made clear that this is an
application for consideration of delay caused in preferring
Appeal from order. Therefore, the decision let into the
condonation of delay as to whether there was sufficient
cause or not are to be taken into consideration. The
decision based upon the merits of the original case is
concerned, has no relevance at this stage because this
Court is not dealing with the merits of the case in detail at
this stage. Merits needs only to be looked into with a view
to see as to whether any legal right is available to the
applicant herein or not. Therefore, the decisions relied
upon by both the sides as to legality or otherwise of the
impugned order of injunction is concerned, has no
relevance at this stage. Further, reliance placed by learned
advocates for both the sides on the ground of sufficient
cause in condonation of delay, are the same. In all the
decisions, pertaining to the view to be taken in application
filed under Section 5 of the Limitation Act for condonation
of delay are principally on the same principle, therefore,
any stand of referring individually thereof, the crux of the
principle relating to condonation of delay, as is brought out
from those decisions, can be summarised as under:
It is axiomatic that condonation of delay is a matter of
discretion of the Court. Section 5 of the Limitation Act does
not say that such discretion can be exercised only if the
delay is within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be
uncondonable due to want of acceptable explanation
whereas in certain other cases delay of very long range can
be condoned as the explanation thereof is satisfactory.
Rule of limitation are not meant to destroy the right of
parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. The object
of providing a legal remedy is to repair the damage caused
by reason of legal injury. Rules of limitation are not meant
to destroy the right of the parties. 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 party deliberately to gain time then the court should
lean against acceptance of the explanation. While
condoning delay the Could should not forget the opposite
party altogether. It must be borne in mind that he is a
looser and he too would have incurred quiet a 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.
13. Now, admittedly in this case, the plaintiff has filed the Suit
claiming that he has share in the suit property which has
been sold by his father to the present applicant by saledeed.
The case of the plaintiff is that property is ancestral
property of his grandfather and at the time of death of his
grandfather, he was minor and when the property was sold
by his father by registered sale-deed to the applicant, at
that time also he was minor and the property being
ancestral property of HUF, he has a co-parcenar right and
he has right in the suit property which has already been
sold by registered sale-deed by his father to the applicant.
In the Suit, the interim injunction has been passed against
the present applicant who has got the property by way of
registered sale-deed. Thus, the execution of the sale-deed
in favour of the applicant is admitted by the plaintiff
himself.
14. As the impugned order has been passed against the
applicant herein who wants to prefer Appeal from Order,
has definitely a legal right to challenge the order of the
trial Court by way of filing Appeal from Order. At this stage
only the point needs to be considered as to whether the
delay occurred in preferring the said Appeal from Order is
well explained or not. Now as the legal settled proposition
which has been set-out here-in-above, considering the
prevalent economy condition of the parties as well as even
of the Country, the financial crisis can be considered to be
one of the grounds for condonation of delay. The pivotal
point of consideration would be whether the parties
concerned has taken dilatory tactics in proceeding with the
matter for initiated any proceedings or whether there is a
malafide on his part or not. If there is a malafide attributed
and established against the party concerned, then
definitely even shortest delay cannot be condoned. It
cannot be presumed that a person against whom an interim
injunction is operating, would adopt dilatory tactics except
in case of compelled circumstances or circumstances out of
his control, he may not be in a position to initiate or
execute or take appropriate immediate steps against the
injunction operating against him. Therefore, it cannot be
presumed that the applicant was not proceeding with the
matter bonafidely or there was dilatory tactics on his part
in initiating the proceedings of Appeal from Order against
the impugned order of injunction which is operating
against him. Therefore, in present case, the applicant has
made out sufficient cause for condonation of delay of 399
days occurred in preferring Appeal from Order. If
application is condoned, no prejudice is likely to be caused
to the other side and the other side would also get
appropriate opportunity if Appeal from Order is preferred.
The interim injunction is operating in their favour. Merely
by permitting the applicant to prefer Appeal from Order
would not automatically affect their possession or having
interim injunction in their favour.
15. Thus, considering all these aspects, the present application
is allowed. The delay of 399 days caused in preferring
Appeal from Order which he propose to file against the
order dated 20.11.2018 passed below Exh-6/7 in Civil Suit
No. 482 of 2016, is hereby condoned. No order as to costs.
Registry to register the Appeal from Order
accordingly
(DR. A. P. THAKER, J)
SAJ GEORGE
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