SCA/2219020/2007 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22190 of 2007 With SPECIAL CIVIL APPLICATION No. 1228 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= ANJANA NANJIBHAI VIRSHANGBHAI - Petitioner(s) Versus AMBABEN DHANRAJBHAI PATEL & 1 - Respondent(s) ========================================= Appearance : MR TUSHAR MEHTA for Petitioner(s) : 1, MR MR PRAJAPATI for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/08/2008 ORAL JUDGMENT 1. As common question of law and facts arise and as they are between the same parties, they are being disposed of by this common judgment and order. 2. By way of Special Civil Application No. 22190 of 2007 under Article 227 of the Constitution of India, petitioner SCA/2219020/2007 2/11 JUDGMENT original defendant has prayed for an appropriate writ, direction and/ or order quashing and setting aside the impugned order dated 24.8.2007 passed by the learned Additional Sessions Judge, Fast Track Court , Palanpur passed below Exh. 1 in Miscellaneous Civil Application No. 49 of 2006 in not staying the order passed by the learned trial Court passed below Exh. 68, by which the learned trial Court has granted mandatory injunction directing the petitioner-defendant to remove the construction put up on the disputed road. By way of Special Civil Application No. 1228 of 2008 under Article 227 of the Constitution of India, the petitioner-defendant has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 24.8.2007 passed by the learned Additional Sessions Judge, 5th Fast Track Court, Palanpur passed in Civil Miscellaneous Application No. 31 of 2007 in not condoning the delay of 363 days in preferring the appeal challenging the order passed by the learned trial Court passed below Exh.5 in Regular Civil Suit No. 40 of 2005. 3. Respondents original plaintiffs have instituted Regular Civil Suit No. 40 of 2005 in the Court of Civil Judge (S.D.), Palanpur for permanent injunction restraining the petitioner-defendant from constructing any compound wall and / or any other construction surrounding the disputed plots. The original plaintiffs also prayed for mandatory injunction directing the defendant to open the 30 ft. road from the disputed land. In the said suit, the plaintiffs submitted application Exh. 5 for interim SCA/2219020/2007 3/11 JUDGMENT injunction restraining the defendant from putting up any construction and/ or putting up any boundary wall. The plaintiffs also submitted application Exh. 20 praying that the construction put up during the pendency of the suit may be directed to be removed by the petitioner- defendant. Petitioner-defendant submitted reply vide Exh. 39 to the application Exh. 20. That by common order dated 7.7.2005, the learned trial Court partly allowed the application Exh.5 as well as disposed of the application below Exh. 20 restraining the petitioner- defendant from putting up any construction over the disputed suit properties as well as restraining the petitioner from creating any hindrance or obstruction to the plaintiffs at the time of their access to the 30 ft. road in between the plots of the plaintiffs. The learned trial Court also directed that if any boundary or construction is put up on 30 ft. road between plots of the plaintiffs, it is to be removed by the petitioner-defendant at his own costs. That, thereafter the respondents-plaintiffs preferred application below Exh. 68 before the learned trial Court requesting to pass an order to remove the illegal construction on the road passing through the plots of the plaintiffs as per the order passed below Exh.5 and in the alternative it was prayed to provide police protection to the plaintiffs so that order below Exh. 5 can be implemented. That vide order dated 23.5.2006, the learned Civil Judge (S.D.), Palanpur allowed the said application Exh. 68 directing the petitioner-defendant to remove the construction from 30 ft. road passing through the plots of the plaintiffs within 20 days. It was also further directed if the petitioner-defendant does not SCA/2219020/2007 4/11 JUDGMENT remove the said construction, the plaintiffs can take the help of the police and after securing the presence of Taluka Development Officer or his representative, the said construction is to be removed and the cost of that should be recovered from the petitioner-defendant. It appears that the order dated 23.5.2006 passed below Exh. 68 came to be challenged by the petitioner -defendant before this Court by way of Special Civil Application No. 12054 of 2006 and the said Special Civil Application came to be withdrawn as the petitioner intended to challenge the said order as well as order dated 7.7.2005 passed below Exh. 5 before the learned Appellate Court. That, thereafter the petitioner- defendant preferred Miscellaneous Civil Appeal No. 49 of 2006 before the learned District Court, Palanpur to quash and set aside the order dated 23.5.2006 passed by the learned 7th Additional Senior Civil Judge, Palanpur below Exh. 68 in Regular Civil Suit No. 40 of 2005. That the learned Additional District Judge, Fast Track Court, Palanpur vide order dated 24.8.2007 has rejected the said appeal by holding that the order passed below Exh. 5 has not been challenged and same has become final and therefore, no illegality has been committed in passing the order below Exh. 68. Being aggrieved and dissatisfied with the impugned order dated 24.8.2007 passed by the learned Appellate Court in Miscellaneous Civil Appeal No. 49 of 2006 in dismissing the same and confirming the order passed below exh. 68, the petitioner-defendant has preferred the Special Civil Application No. 22190 of 2007. 4. That being aggrieved and dissatisfied with the order SCA/2219020/2007 5/11 JUDGMENT passed by the learned trial Court passed below Exh. 5 dated 7.7.2005 in Regular Civil Suit No. 40 of 2005, petitioner-defendant also preferred the Miscellaneous Civil Appeal before the learned District Court. However, in the meantime, there was a delay of approximately 360 days in preferring the appeal and, therefore the petitioner-defendant submitted application to condone the delay of 360 days in preferring the appeal challenging the order passed below Exh.5. The said application came to be rejected by the learned Appellate Court by impugned order dated 24.8.2007. Being aggrieved and dissatisfied with the order passed by the learned Appellate Court dated 24.8.2007 in Miscellaneous Civil Application No. 31 of 2006 in not condoning delay of 360 days in preferring the appeal challenging the order passed by the learned trial Court below Exh. 5, the petitioner-defendant has preferred the Special Civil Application No. 1228 of 2008. Both the aforesaid Special Civil Applications are heard together. 5. Shri Tushar Mehta, learned Senior Advocate appearing on behalf of the petitioner-defendant has vehemently submitted that learned Appellate Court has materially erred in not condoning the delay in preferring the appeal challenging the order passed by the learned trial Court passed below Exh.5. It is submitted that learned Judge ought to have considered the fact that there was no mala fide intention of the defendant in not preferring the appeal within a period of limitation. It is submitted that the learned Appellate Court ought to have given one opportunity to the petitioner-defendant to submit the SCA/2219020/2007 6/11 JUDGMENT case on merits rather than non-suiting the petitioner on the technical ground of delay. It is submitted that considering the fact that the mandatory injunction has been granted and that there was a meritorious case, therefore, even by imposing reasonable cost, the learned Appellate Court ought to have condoned the delay. Shri Tushar Mehta, learned Senior Advocate appearing on behalf of the petitioner has submitted that undeavour of the Court is to decide the dispute on merits and do substantial justice by paramount consideration and, therefore, the learned Judge ought to have condoned the delay. 6. So far as challenging the order passed learned Appellate Court passed in Miscellaneous Civil Appeal No. 49 of 2006 in which the order passed by the learned trial Court passed below Exh. 68 was challenged, Shri Mehta, learned Senior Advocate appearing on behalf of the petitioner has submitted that the order below Exh. 68 was to comply with the order passed below Exh.5 which was the subject matter of the appeal and, therefore, if the appeal challenging the order passed below Exh. 5 is considered, on merits in that case whatever will be outcome in appeal challenging the order passed below Exh. 5, parties will have abide by the same, subject to the challenging the same before the Higher Forum. Therefore, it is submitted to pass appropriate order in respect of the same. 7. Both these petitions are opposed by Shri Mehul Shah, learned advocate appearing for Shri M.R. Prajapati, SCA/2219020/2007 7/11 JUDGMENT learned advocate appearing on behalf of the respondents-plaintiffs. It is submitted that till the order was passed by the learned trial Court below Exh.68 and even thereafter petitioner-defendant did not challenge the order passed by the learned trial Court passed below Exh. 5 and same came to be challenged only after the order came to be passed by the learned trial Court below Exh. 68 to comply with the order passed below Exh.5, therefore, the learned Appellate Court has rightly rejected the application to condone the delay in preferring the appeal. It is submitted that as rightly observed by the learned Appellate Court no sufficient cause has been shown in support of the prayer to condone the delay till the application Exh. 68 came to be passed. It is further submitted that in view of the above and when the application Exh. 5 was not challenged and the order came to be passed by the learned trial Court below Exh. 68 in furtherance of the order passed below Exh. 5 which was not challenged, the learned Appellate Court has rightly dismissed the appeal preferred by the petitioner-defendant challenging the order passed by the learned trial Court below Exh. 68. Therefore, it is requested to dismiss both the Special Civil Applications. 8. Heard the learned advocates appearing on behalf of the respective parties. On considering the impugned order passed by the learned Appellate Court passed in Miscellaneous Civil Appeal No. 31 of 2006 in not condoning the delay in preferring the appeal, it appears that what has been weighed with the learned Appellate Court is that though the petitioner-defendant was in SCA/2219020/2007 8/11 JUDGMENT knowledge of the order passed below Exhs. 5 and 20 no appeal was preferred challenging the order below Exh. 5. The another ground which has been weighed with the learned Appellate Court is that the petitioner challenged the order below Exh. 68 before this Court and the same was withdrawn. Considering the impugned order, it appears that the learned Appellate Court has taken too technical view while considering the application for condonation of delay. It was not the case on behalf of the petitioner-defendant that there was deliberate delay on the part of the petitioner-defendant in not preferring the appeal within a period of limitation. It also appears that by not preferring the appeal within the stipulated time the petitioner was not going to be benefited. It appears that after the order came to be passed by the learned trial Court below Exh. 68, the petitioner-defendant realized the serious conscious pursuant to the order passed below Exh. 5. Thereafter, in fact they challenged the order passed below Exh. 68 before this Court, however it was realized that as they have not challenged the order passed below Exh. 5, they withdrew the said Special Civil Application as they intended to challenge the order passed below Exh. 5 as well as Exh. 68 by way of appeal before the learned Appellate Court and that is how the appeal came to be preferred challenging the order below Exh. 5 and as there was delay application was submitted to condone the delay. Simultaneously, petitioner also preferred the appeal before the learned District Court challenging the order below Exh. 68, which also came to be rejected on the ground that order below Exh.5 has not been challenged and the Special SCA/2219020/2007 9/11 JUDGMENT Civil Application challenging the order below Exh. 68 has been withdrawn. 9. This Court in catena of decisions has held that time and again that Courts dealing with the delay condonation application should adopt a liberal approach and not hyper technical one. Unless the applicant making the application for condonation of delay is guilty of gross delay or has filed with deliberate delay with some ulterior motive, application for condonation are normally to be accepted. As held by the Hon'ble Supreme Court as well as this Court in catena of decisions substantial justice lies in deciding the matter on merits rather disposing it of on technicalities. At time the order passed by the authority / Court is not worth more than piece of papers, in absence of any proper advice to the litigants who are villagers. It is too much to expect from them the knowledge of law. In the present case also, it appears that the petitioner-defendant may not have been properly advice to challenge the order passed by the learned trial Court passed below Exh. 5 at an appropriate stage and and at an appropriate time and only when the order below Exh. 68 came to be passed they realized the serious conscious and thereafter challenged the same. In the facts and circumstances of the case, the learned Appellate Court ought to have condoned the delay by giving opportunity to the petitioner-defendant to submit the case on merits rather than non-suiting petitioner-defendant on technical ground on delay and not considering the appeal on merits. Under the circumstances, impugned order SCA/2219020/2007 10/11 JUDGMENT passed by the learned Appellate Court in Miscellaneous Civil Appeal No. 31 of 2006 in not condoning the delay in preferring the appeal below Exh. 5 deserve to be quashed and set aside. The learned Appellate Court is directed to decide and dispose of the appeal preferred by the petitioner-defendant challenged the order below Exh. 5 on merits. In view of the above, challenged to the order below Exh. 68 will depend upon the ultimate outcome of the appeal challenging the order below Exh. 5 and the parties will have to abide by the order that may be passed in appeal challenging the order below Exh. 5 and till then order below Exh. 68 is to be suspended and/or kept in abeyance . 10.For the reasons stated above, Special Civil Application No. 1228 of 2008 is hereby allowed. The impugned order passed by the learned Additional District Judge, Fast Track Court dated 24.8.2007 passed in Miscellaneous Civil Appeal No. 31of 2006 is hereby quashed and set aside and delay caused in preferring the appeal challenging the order passed by the learned Civil Judge (S.D.), Palanpur below Exh. 5 in Regular Civil Suit No. 40 of 2005 is hereby condoned. Now, the learned Appellate Court to decide and dispose of the said appeal in accordance with law and on merits at the earliest but not latter than three months from the date of receipt of this order. In view of the above and for the reasons stated above Special Civil Application No. 22190 of 2007 is disposed of by suspending and/ or keeping in abeyance the order passed below Exh. 68 in abeyance till the appeal against the order passed by the learned trial SCA/2219020/2007 11/11 JUDGMENT Court below Exh. 5 is decided and disposed of the by the learned Appellate Court stated herein above. Meaning thereby, parties are directed to maintain status quo till in the appeal challenging the order below Exh. 5 is decided and disposed of. The aforesaid arrangement would be without prejudice to the rights and contentions of the respective parties and the learned Appellate Court is to decide and dispose of the appeal agiainst the order below Exh. 5 in accordance with law and on merits without in any way being influenced by the present order. Parties to act as as per order that may be passed by the learned Appellate Court in the appeal challenging the order below Exh. 5 subject to any further order by the Higher Forum. Rule is made absolute to the aforesaid extent in both the aforesaid Special Civil Applications. In the facts and circumstances of the case, there shall be no order as to costs. (M.R.SHAH,J.) kaushik