Gujarat High Court
Popatbhai Chhaganbhai Vaghela vs Dineshbhai Gokalbhai Patel on 24 October, 2024
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/CA/1766/2023 ORDER DATED: 24/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1766 of
2023
In F/FIRST APPEAL NO. 30080 of 2023
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POPATBHAI CHHAGANBHAI VAGHELA
Versus
DINESHBHAI GOKALBHAI PATEL & ORS.
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Appearance:
MR AN PATEL(597) for the Applicant(s) No. 1
MR TATTVAM K PATEL(5455) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2,4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 24/10/2024
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
By this application the applicant, has prayed for condoning the
delay of 491 days caused in preferring the captioned First Appeal.
2. Mr A.N. Patel learned advocate for the applicant submits that
the Special Civil Suit being P.H. no.21 of 2021 was filed and it came
to be rejected by the learned Principal Senior Civil Judge, Nadiad by
passing the order dated 15.11.2021 on the ground of suit being
barred by provisions of Section 11 of the Bombay Revenue
Jurisdiction Act, 1876 (hereinafter referred to as the ‘Act of 1876’). It
is submitted that though the order was passed, decree was not
drawn and in absence thereof, the applicant preferred Civil Revision
Application no.571 of 2021 before this Court well within the
limitation period of 90 days. The Revision Application, came to be
disposed of as withdrawn reserving the liberty to take out the
appropriate proceedings before the appropriate Court.
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being Special Civil Application no.26366 of 2022, praying for the
reliefs; however, the same was withdrawn with a liberty to avail of
statutory remedy, which was followed by filing Civil Revision
Application no.217 of 2023, as the applicant was of the opinion that
in absence of the decree drawn, the appeal would not be registered.
Recording the apprehension of the applicant about non-drawal of
decree, it was observed that it will be open to the applicant to
request the Court concerned to draw the decree.
2.2 Immediately thereafter, the applicant filed an application
before the learned Principal Senior Civil Judge, inter alia, with a
request to draw the decree as per order dated 15.11.2021. It is
submitted that since nothing was heard, writ petition being Special
Civil Application no.12454 of 2023 was filed. This Court, while
disposing of the writ petition in the concluding paragraph, has
observed that the order would amount to a decree as per the
definition contained in sub-section (2) of Section 2 of the Code of
Civil Procedure, 1908 (herein after referred to as ‘the Code’) and the
First Appeal under Section 96 read with Order 41 of the Code, is
available. Therefore, the applicant, immediately filed the captioned
First Appeal along with the Civil Application and in the process,
there occurred delay of 491 days.
2.3 It is submitted that Section 14 of the Limitation Act, 1963
(hereinafter referred to as the ‘Act of 1963’), provides that in
computing the period of limitation for any application, the time
during which the applicant has been prosecuting with due diligence
another civil proceeding, shall be excluded, where such proceeding
is prosecuted in good faith in a Court which, from defect of
jurisdiction or other cause of a like nature, is unable to entertain it.
It is submitted that the applicant, has been bona fidely prosecuting
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the proceedings before this Court.
2.4 Reliance is placed on the judgment of this Court in the case of
Anupam Port Cranes Corporation Limited vs. Scan Shipping Pte.
Limited reported in 2022 (4) GLH 305. It has been held and
observed that under Section 5 of the Act of 1963, the party has to
show sufficient cause for condonation of delay. It has been further
held that it is well settled that if a party was prosecuting a lis before
wrong forum without any mala fide intention, time consumed in
such lis can be considered at the time of condoning the delay. For
similar proposition reliance is placed on the judgment of the Apex
Court in the case of Purni Devi vs. Babu Ram reported in 2024 INSC
259. It has been held and observed that a conjoint reading of the
provisions of Section 14 makes it clear that an applicant who has
prosecuted another civil proceedings with due diligence before a
forum which is unable to entertain the same on account of defect of
jurisdiction or any other cause of like nature, is entitled to exclusion
of the time during which the applicant had been prosecuting such
proceedings. It is therefore, submitted that the applicant, has been
prosecuting the proceedings before this Court with due diligence
and in good faith and hence, the provisions of Section 14, are very
much available to the applicant and the delay, therefore, be
condoned.
2.5 It is submitted that even otherwise on merits, if one sees the
impugned order, the plaint is not rejected, but it has been filed
which is a novel concept adopted by the learned Judge and it is
impermissible.
3. On the other hand, Mr Tattvam K. Patel learned advocate for
the respondent No.3, has vehemently opposed the application. It is
submitted that against the order, the remedy available to the
applicant, was to file an appeal; however, Civil Revision Application
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was filed, which came to be withdrawn with a specific understanding
to take out appropriate proceedings before the appropriate forum
and hence, the applicant was expected to have taken steps for
preferring the appeal; however, the applicant chose to prefer a writ
petition before this Court which also came to be withdrawn with a
liberty to avail of the statutory remedy. Instead of availing statutory
remedy, the applicant again preferred a Civil Revision Application,
raising the apprehension about non-drawal of decree. Such
apprehension in the first place, was not correct. However this Court,
while disposing of the Civil Revision Application, clarified that it will
be open to the applicant to approach the Court for drawing of the
decree and non-drawal of the decree, shall not come in the way of
applicant while preferring the appeal.
3.1 It is submitted that the applicant, once again filed Special Civil
Application no.12454 of 2023, which also came to be dismissed as
not maintainable. When there was already clarification accorded by
this Court vide order dated 28.06.2023, it cannot be said that the
proceedings being Special Civil Application no.12454 of 2023, was
filed with a good faith. It is therefore, submitted that neither is there
a due diligence observed by the applicant nor the steps taken were
bona fide.
3.2 While adverting to the merits of the case, it is submitted that
the applicant, has initiated several proceedings unsuccessfully.
Proceedings were initiated under the provisions of Sections 32G,
32(1B), 43-1D and 70(b) of the Gujarat Tenancy and Agricultural
Lands Act, 1948 (hereinafter referred to as ‘the Act of 1948’) and
the applicant has lost upto the Apex Court. As if the dismissal was
not sufficient, the applicant filed a writ petition being Special Civil
Application no.10911 of 2016 before this Court which was in
connection with the tenancy proceedings for extending the benefit
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of the notification for issuance of the certificate to the applicant as a
tenant. This Court, has observed that the writ petition, was mere an
illusion and with an oblique reference in order to confuse the Court.
The coordinate bench, pointed out that the clever drafting cannot be
appreciated but is required to be deprecated as it is designed to pull
the wool over the Court’s eyes so that half-truths are projected as
the truth. It is submitted that the conduct of the applicant, was
highly deprecated and the petition came to be dismissed with costs.
3.3 It is submitted that the applicant, is in the habit of filing
proceedings in succession and hence, Special Civil Application
no.16874 of 2019 which was filed subsequently, came to be
dismissed; however, liberty was reserved to approach the
appropriate authorities by initiating appropriate proceedings with
regard to the possession. The attempt on the part of the applicant,
was to see that the respondents are entangled in various litigations.
Even criminal proceeding was filed for the very same relief. Besides,
the revision applications filed against the order passed by the
revenue authorities is pending consideration before the Tribunal.
Since the application lacks due diligence and is not genuine, the
benefit of Section 14 of the Act of 1963 to the applicant cannot be
made available.
4. Heard the learned advocates appearing for the respective
parties and perused the documents made available on the record.
5. The request in the captioned application, is to condone the
delay of 491 days caused in preferring the captioned appeal which
has been strongly objected to by the respondent on the ground that
the said benefit cannot be made available to the applicant inasmuch
as, the parameters contained in Section 14 of the Act of 1963 are
missing.
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6. Discernibly, the suit was filed by the applicant seeking
declaration and permanent injunction against the defendants. The
learned Judge, considering the provisions of Order VII Rule 11 of the
Code so also Section 11 of the Act of 1876, was of the opinion that
when there is a challenge before the Tribunal pending together with
other reliefs, the suit is not tenable. In paragraph 5, it has been
observed that the plaintiff had preferred a writ petition before this
Court being Special Civil Application no.16874 of 2019 against the
order of the Mamlatdar which has been dismissed on 24.08.2021
and hence, the suit of the plaintiff is filed. The order was passed on
15.11.2021 and it is not in dispute that within the period of
limitation on 04.12.2021 the Civil Revision Application no.571 of
2021 was preferred; however, considering the challenge, the
permission for withdrawal was sought for, which was duly granted,
reserving liberty to take out appropriate proceeding. Followed was
the writ petition being Special Civil Application no.26366 of 2022,
inter alia, seeking direction to the learned Judge to adjudicate the
civil rights of the applicant and for setting aside the order dated
15.11.2021. Once again the request was made, seeking permission
to withdraw the application to avail of the statutory remedy, which
was granted and the petition, came to be disposed of. For the
reasons best known to the applicant, again Civil Revision Application
no.217 of 2023 was filed, challenging the very same order. Upon
objection being raised by the respondent, a request was made for
withdrawal, raising the apprehension that since the decree is not
drawn, First Appeal, would not be entertained. Addressing the
apprehension, this Court, pointed out that it will open to the
applicant to request the Court concerned to draw the appropriate
decree.
7. Apropos the order dated 28.06.2023, the applicant had
preferred an application for quashing and setting aside the ex parte
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order dated 15.11.2021 or to draw the decree of the said order. The
said application, is pending consideration. This led to filing of the
writ petition being Special Civil Application no.12454 of 2023, inter
alia, praying for the selfsame relief, i.e. quashing and setting aside
the order dated 15.11.2021. This Court, was of the opinion that the
writ petition would not be maintainable; however, in view of the
definition as contained in sub-section (2) of Section 2, appeal under
Section 96 read with Order 41 of the Code, is available and that the
order can be challenged. It is thereafter, that the captioned First
Appeal came to be filed. The time consumed, was the proceedings
before this Court. Request is made that considering the provisions of
Section 14 of the Act of 1963, the time during which the applicant
was prosecuting the proceedings before this Court, may be
excluded.
8. It is the case of the applicant that considering the nature of
the proceedings initiated by the applicant, it cannot be said that the
applicant was not vigilant. The applicant, with all due diligence and
good faith, was prosecuting the proceedings before this Court. As
against this, the stand taken by the respondent is that when initially
the Civil Revision Application was disposed of as withdrawn, the
applicant once again filed another Revision Application and even the
apprehension voiced by the applicant was sufficiently taken care of
by this Court despite which, the applicant preferred a writ petition
and hence, it cannot be said that the applicant, was bonafidely
prosecuting the proceedings.
9. Pertinently, the proceedings have been prosecuted under a
mistaken belief. The filing of previous Civil Revision Application was
on the apprehension that the appeal would not be maintainable
without the decree. It is also not in dispute that the decree was not
drawn and hence, the subsequent Revision Application and the writ
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petition. The application is filed; however, the status of the
application is not known to the learned advocate. The applicant,
was clamouring for clarity which came to be settled vide order
dated 28.06.2023 read with order dated 29.09.2023. The coordinate
bench, citing the definition of sub-section (2) of Section 2 of the
Code, observed that the order would amount to decree and first
appeal under Section 96 read with Order 41 of the Code, would be
maintainable. When the applicant, was vigorously prosecuting the
proceedings, it would be difficult to accept that the applicant was
not diligent or was indolent. It is true that the applicant has been
filing the proceeding one after another. May be the approach of the
applicant was not in a right earnest but can be said to be in a good
faith. The applicant, would no be benefited by taking out the
proceedings; however, it was the lack of clarity on the part of the
applicant which led to the proceedings before the wrong forum.
10. The Apex Court in the case of M/s Consolidated Engineering
Enterprises vs. Principal Secretary, Irrigation Department & Others
reported in (2008) 7 SCC 169, while considering the provisions of
Section 14 of the Act of 1963, has set out conditions to be satisfied
for the purpose of deciding the application under Section 17.
Paragraphs 21, 22 and 31 of the said judgment, read thus:
“21. Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of
the said Section, it becomes evident that the following conditions
must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings
prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and
in good faith;
(3) The failure of the prior proceeding was due to defect of
jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to
the same matter in issue and;
(5) Both the proceedings are in a court.
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22. The policy of the Section is to afford protection to a litigant
against the bar of limitation when he institutes a proceeding which by
reason of some technical defect cannot be decided on merits and is
dismissed. While considering the provisions of Section 14 of the
Limitation Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the cause of
justice rather than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the invocation of
Section 14. In fact, the section is intended to provide relief against
the bar of limitation in cases of mistaken remedy or selection of a
wrong forum. On reading Section 14 of the Act it becomes clear that
the legislature has enacted the said section to exempt a certain
period covered by a bona fide litigious activity. Upon the words used
in the section, it is not possible to sustain the interpretation that the
principle underlying the said section, namely, that the bar of
limitation should not affect a person honestly doing his best to get his
case tried on merits but failing because the court is unable to give
him such a trial, would not be applicable to an application filed under
Section 34 of the Act of 1996. The principle is clearly applicable not
only to a case in which a litigant brings his application in the court,
that is, a court having no jurisdiction to entertain it but also where he
brings the suit or the application in the wrong court in consequence
of bona fide mistake or law or defect of procedure. Having regard to
the intention of the legislature this Court is of the firm opinion that
the equity underlying Section 14 should be applied to its fullest
extent and time taken diligently pursuing a remedy, in a wrong court,
should be excluded.
31. To attract the provisions of Section 14 of the Limitation Act, five
conditions enumerated in the earlier part of this Judgment have to co-
exist. There is no manner of doubt that the section deserves to be
construed liberally. Due diligence and caution are essentially pre-
requisites for attracting Section 14. Due diligence cannot be
measured by any absolute standards. Due diligence is a measure of
prudence or activity expected from and ordinarily exercised by a
reasonable and prudent person under the particular circumstances.
The time during which a court holds up a case while it is discovering
that it ought to have been presented in another court, must be
excluded, as the delay of the court cannot affect the due diligence of
the party. Section 14 requires that the prior proceeding should have
been prosecuted in good faith and with due diligence. The definition
of good faith as found in Section 2(h) of the Limitation Act would
indicate that nothing shall be deemed to be in good faith which is not
done with due care and attention. It is true that Section 14 will not
help a party who is guilty of negligence, lapse or inaction. However,
there can be no hard and fast rule as to what amounts to good faith.
It is a matter to be decided on the facts of each case. It will, in almost
every case be more or less a question of degree. The mere filing of
an application in wrong court would not prima facie show want of
good faith. There must be no pretended mistake intentionally made
with a view to delaying the proceedings or harassing the opposite
party. In the light of these principles, the question will have to be
considered whether the appellant had prosecuted the matter in other
courts with due diligence and in good faith. As is evident from the
facts of the case, initially the appellant had approached the court of
learned Civil Judge, Senior Division, Chitradurga for setting aside the
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award made by the arbitrator. On direction dated October 29, 2002
issued by the learned Civil Judge (Senior Division), Chitradurga, the
appellant had presented the application for setting aside the award
before the learned District Judge, Chitradurga. Before the learned
District Judge, Chitradurga an objection was raised by the respondent
that the application was not maintainable before the said court and
that the application was maintainable before the learned Judge, City
Civil Court, Bangalore. The District Judge, Chitradurga by an order
dated February 3, 2003 held that it had no jurisdiction to entertain
the application submitted by the applicant and accordingly returned
the application for presentation before the appropriate court. The
question of jurisdiction was seriously contested between the parties
not only before the court of learned Civil Judge (Senior Division),
Chitradurga but also before the learned District Judge, Chitradurga.
The question of jurisdiction had to be considered by the courts below
because of establishment of City Civil Court, Bangalore under a
special enactment and in view of the definition of the word courtµ as
given in Section 2(e) of the Arbitration and Conciliation Act, 1996
which means the principal civil court of original jurisdiction in a
district. The record does not indicate that there was pretended
mistake intentionally made by the appellant with a view to delaying
the proceeding or harassing the respondent. There was an honest
doubt about the court competent to entertain the application for
setting aside the award made by the arbitrator. The mere fact that
the question of jurisdiction is an arguable one would not negative
good faith because the appellant believed bona fide that the court in
which it had instituted the proceeding had jurisdiction in the matter.
By filing the application in the courts which had no jurisdiction to
entertain the same, the appellant did not achieve anything more
particularly when the lis was never given up. Under the
circumstances this Court is of the opinion that the Division Bench of
the High Court of Karnataka was not justified in concluding that the
appellant had not prosecuted the matter in other courts with due
diligence and in good faith. The said finding being against the weight
of evidence on record, is liable to be set aside and is hereby set
aside. We, therefore, hold that the appellant had prosecuted the
matter in other courts with due diligence and in good faith and,
therefore, is entitled to claim exclusion of time in prosecuting the
matter in wrong courts. Therefore, the appeal arising from SLP(C)
No.15619 of 2005 will have to be allowed.”
11. It is not in dispute that the conditions set out are very much
available so far as the present application is concerned and hence,
the applicant, would be eligible for the benefit contained in Section
14 of the Act of 1963. It is by now well recognized, that element of
mistake is inherent in the invocation of Section 14 of the Act of 1963
and while considering the provisions, proper approach will have to
be adopted and provisions will have to be interpreted so as to
advance the cause of justice rather than abort the proceedings. It is
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well recognized that the intention of the legislature is that the
equity underlying Section 14 should apply to its fullest extent and
time take diligently in pursuing remedy in wrong forum should be
excluded.
12. Applying the said principle to the facts of the present case,
this Court, is of the opinion that the applicant was prosecuting with
due diligence the proceedings before this Court and in a good faith
and therefore, the delay of 491 days caused in preferring the
captioned appeal deserves to be condoned and is hereby condoned.
13. In view of the above, the Civil Application succeeds and is,
accordingly allowed. Rule is made absolute. No order as to costs.
(SANGEETA K. VISHEN,J)
(SANJEEV J.THAKER,J)
AMIT MISHRA/BINOY B PILLAI
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