IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 856 of 2005 WITH SPECIAL CIVIL APPLICATION NOS.857 WITH 858 AND 859 OF 2005. For Approval and Signature: HON'BLE MR.JUSTICE JAYANT PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PATEL SOMABHAI KACHARDAS Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 856 of 2005 MR NC NAYAK for Petitioner No. 1 MS JYOTSNA M AMIN for Petitioner No. 1 GOVERNMENT PLEADER for Respondent No. 1-2 NOTICE NOT RECD BACK for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE JAYANT PATEL Date of decision: 25/04/2005 ORAL JUDGEMENT RULE. Mr.Prachchak, learned A.G.P. appears for respondent Nos.1 and 2 waives notice of rule. With the consent of the parties, all the matters are taken up for final hearing today. 2. The short facts of the case are that the petitioner was the member of Kalol Municipality for the period of 1996, 1997 and others. It appears that the Director of Municipality initiated the proceedings under Section 70 of the Gujarat Municipality Act,(hereinafter referred to as the "Act") for fastening of the financial liability for misuse and irregularities committed by the office bearers of the Municipality. Ultimately, different orders came to be passed by the Director of Municipality under Section 70 of the Act whereby, the proportionate financial liability was fastened upon the concerned member of the Municipality including the petitioner herein and the said amounts were ordered to be recovered. It appears that the petitioner preferred an appeal before the learned District Judge, as per Section 70 (4) of the Act. However, such appeal was required to be preferred within period of one month from the date of the said decision. But, as there was a delay of 12 days in preferring the appeal, the application for condonation of delay was also preferred by the petitioner in the concerned appeal. It appears that the said application for condonation of delay remained pending for long time and when it came up for hearing before the learned District Judge at Gandhinagar, nobody remained present on behalf of the petitioner and the learned District Judge found that the appellant/applicant therein was no longer interested, in conducting the appeal and therefore, the applications were dismissed for default, as per the order dated 14/10/2004. Under these circumstances, the petitioners have preferred the present petition before this Court. 3. Special Civil Application No.856/2005 is preferred for challenging the order passed in Misc. Civil Application No.51/2004 and S.C.A. No.857/2004 is preferred for challenging the very common order passed in Civil Misc. Application No.52/2004, S.C.A. No.858/2005 is preferred for challenging the same type of order passed in Civil Misc. Application No.54/2004 and S.C.A.No.859/2005 is preferred for challenging the common order passed in Civil Misc. Application No.53/2004. As there are two common orders for two sets of Civil Misc. Applications and the reasons recorded in both the orders are common and the facts are also common, they shall be considered in common for examining the merits of the order. 4. Before the matter is further examined, it is required to be recorded that on 1/4/2005 this court had passed following orders in Special Civil Application No.856/2005 and Special Civil Application No.857/2005 and in all the matters. Special Civil Application No.856/2005: (CORAM: Jayant Patel, J.) "Mr.Trivedi for Mr.N.C.Naik for the petitioner states that the petitioner is ready to deposit 25% of the ordered amount of Rs.16,407/- and he is also ready to pay Rs.1000/- towards costs in case this court is inclined to consider the matter for remanding by compensating default caused in the appeal before the Ld. District Judge. 2. In view of the above, notice returnable on 25.4.05. 3. By ad interim order, there shall be stay against recovery on condition that the petitioner deposits 25% of the ordered amount of Rs.16,407/within two weeks from today with the Municipality without prejudice to the rights and contentions in this petition, and further deposits the amount of Rs.1000/- towards costs with this Court on or before 21.4.05. 4. The petitioner to give advance copy to Mr.Prachhak, Ld.AGP. Special Civil Application No.857/2005: (CORAM: Jayant Patel, J.) "Mr.Trivedi for Mr.N.C.Naik for the petitioner states that the petitioner is ready to deposit 25% of the ordered amount of Rs.3030/- and he is also ready to pay Rs.1000/- towards costs in case this court is inclined to consider the matter for remanding by compensating default caused in the appeal before the Ld. District Judge. 2. In view of the above, notice returnable on 25.4.05. 3. By ad interim order, there shall be stay against recovery on condition that the petitioner deposits 25% of the ordered amount of Rs.3,030/within two weeks from today with the Municipality without prejudice to the rights and contentions in this petition, and further deposits the amount of Rs.1000/- towards costs with this Court on or before 21.4.05. 4. The petitioner to give advance copy to Mr.Prachhak, Ld.AGP. Special Civil Application No.858/2005: (CORAM: Jayant Patel, J.) "Mr.Trivedi for Mr.N.C.Naik for the petitioner states that the petitioner is ready to deposit 25% of the ordered amount of Rs.32956/- and he is also ready to pay Rs.1000/- towards costs in case this court is inclined to consider the matter for remanding by compensating default caused in the appeal before the Ld. District Judge. 2. In view of the above, notice returnable on 25.4.05. 3. By ad interim order, there shall be stay against recovery on condition that the petitioner deposits 25% of the ordered amount of Rs.32956/within two weeks from today with the Municipality without prejudice to the rights and contentions in this petition, and further deposits the amount of Rs.1000/- towards costs with this Court on or before 21.4.05. 4. The petitioner to give advance copy to Mr.Prachhak, Ld.AGP. Special Civil Application No.859/2005: (CORAM: Jayant Patel, J.) "Mr.Trivedi for Mr.N.C.Naik for the petitioner states that the petitioner is ready to deposit 25% of the ordered amount of Rs.5549/- and he is also ready to pay Rs.1000/- towards costs in case this court is inclined to consider the matter for remanding by compensating default caused in the appeal before the Ld. District Judge. 2. In view of the above, notice returnable on 25.4.05. 3. By ad interim order, there shall be stay against recovery on condition that the petitioner deposits 25% of the ordered amount of Rs.5549/within two weeks from today with the Municipality without prejudice to the rights and contentions in this petition, and further deposits the amount of Rs.1000/- towards costs with this Court on or before 21.4.05. 4. The petitioner to give advance copy to Mr.Prachhak, Ld.AGP." 5. Learned Counsel appearing for the petitioner during the course of the hearing has submitted that the petitioner has deposited the amount of Rs.14,486/- and shall further deposits the requisite amount as ordered by the Court on 1/4/2005 with the Municipality. It has been further submitted that the petitioner has already deposited the amount of Rs.1000/towards the cost in all the concerned petitions on 13/4/2005 with this Court. 6. Heard, Ms.Trivedi, learned Counsel for the petitioner and Mr.Prachchak, learned A.G.P. for the respondent authority. 7. The perusal of the order passed by the learned District Judge below the application for condonation of the delay shows that, as the matters were listed after a period of six years and nobody remained present, the learned District Judge has dismissed all the applications for default. The petitioner in this petition at Page No.4 has made the statement that though the notice was served upon the petitioner on 2/10/2004, the petitioner was under the medical treatment of Asthma and he was not in a position to come personally before the District Court, Gandhinagar and had instructed his Advocate Mr.M.P.Chaudhari to represent his case but, it appears that the learned Advocate for the petitioner also did not remain present. There is no material produced by the respondent to dislodge the aforesaid ground contended by the petitioner that due to sickness the petitioner could not remain present on the date when the hearing was fixed. 8. It is true that there was a default on the part of the learned Advocate, who was representing the case of the petitioner but, it appears that even, if there is a default by the either party to the proceedings, in normal circumstances, the Court may considering the matter by examining the aspects as to whether such default can be compensated by awarding appropriate cost to the respondent. Further, in a matter where the proceedings have gone unattended and consequently, had resulted into execution proceedings then, even in such circumstances, while examining the challenge to ex-parte proceedings, the Court may exercise the discretion for directing the parties to deposit some reasonable amount for examination of the matter on merits, even, if such default is to be compensated by awarding suitable cost. If such approach is not made by Higher Forum while considering the matter for remand to an ex-parte order, it may result into encouraging the litigant to allow the proceedings to go ex-parte and to take undue benefit by raising the grievance as and when such ex-parte is sought to be executed against the concerned litigant. Therefore, considering the facts and circumstances, I find that even if the default is to be compensated by awarding suitable cost, the petitioner should also be put to the conditions to deposit 25% of the ordered amount, I would have examined the matter further however, it appears that even when first order came to be passed by this Court on 1/4/2005, the willingness is shown on the part of the petitioner to deposit 25% of the ordered amount and also, the cost of Rs.1000/- in each of the petition and therefore, I find it proper to leave the matter at that stage. 9. So far as the application for condonation of delay is concerned, delay was of 12 days and the ground contended in the application for condonation of delay is that the petitioner is the patient of Asthma and as the health was not good on account of Asthma, he could not contact the Lawyer and the appeal could not be preferred within stipulated time limit and therefore, the petitioner was prevented by sufficient cause for not preferring the appeal within stipulated time limit and delay of 12 days was prayed to be condoned. No material is produced by the learned A.G.P. to satisfy this Court that, there was any affidavit in reply field opposing the application for condonation of delay and / or, the ground contended for condonation of delay is not genuine or incorrect. In normal circumstances, the approach of the Court for the purpose of condonation of delay, would be lenient unless, it is demonstrated that the rights of the parties are altered or the situation have become irreversible. It is not the case of the learned A.G.P. that, there is any alteration of the rights or the situation have become irreversible. Therefore, considering the facts and circumstances, it appears that no useful purpose would be served in remanding the matter to the learned District Judge for deciding the application for condonation of delay, and thereafter, to consider the appeal on merits. It appears that the petitioner has made out a case for condonation of delay and therefore, it would be just and proper to condone the delay and to direct the learned District Judge to decide the appeal on merits. It also appears that as the appeal is pending before the learned District Judge for a long time since 1998, it would be just and proper to direct the learned District Judge to decide the appeal within some reasonable time. 10. In view of the aforesaid impugned orders dated 14/10/2004, passed by the learned District Judge, Gandhinagar for dismissing the application for condonation of delay in the concerned petitions are quashed and set aside and it is further declared that the delay caused in preferring the appeal by the petitioner deserves to be condoned and hence, the application for condonation of delay shall stand allowed. The learned District Judge shall take up the main appeal for hearing and shall render the decision after hearing all concerned, as early as possible, preferably within period of six months from the receipt of the writ of this Court. 11. The aforesaid directions of this Court of quashing the learned District Judge and of condoning the delay in appeal and of hearing the appeal within the stipulated time limit, shall be on express condition that the petitioner deposits the amount as ordered by this Court on 1/4/2005 with the Municipality concerned, being 25% of the ordered amount and pays cost of Rs.1000/- in each of the petition to the respondent authority. As the petitioner has deposited the amount in part with the Municipality, the petitioner is directed to deposit the remaining amount in the concerned petition, by complying with the order dated 1/4/2005, within the period of two months from today with the respondent Municipality. The Office of the Government Pleader shall be at liberty to withdraw the amount of cost of Rs.1000/- in each petition which has already been deposited by the petitioner in the proceedings of the concerned petitions with this Court. The deposit of 25% of the ordered amount as indicated earlier shall be subject to final order which may be passed in the concerned appeal by the learned District Judge. Petitions are partly allowed to the aforesaid extent. Rule partly made absolute accordingly. (Jayant Patel, J.) sompura