STATE OF GUJARAT Vs. NAIMULLA JAVADULLA KAZI

JUDGEMENT

(1.) The opponent filed Regular Civil Suit No. 40/ 67 in the Court of Civil Judge (S.D.), Godhra against eleven persons, including State of Gujarat, Union of India and Deputy Custodian of Evacuees Property, who were defendants Nos. 9 to 11, respectively. The suit was for a declaration that the suit properties of which the Deputy Custodian of Evacuee Property, Godhra had taken over possession were personal properties of the plaintiff. The plaintiff had also prayed for accounts and mesne profits. The learned Civil Judge held that the plaintiff has l/5th share in the said properties and therefore granted a declaration accordingly. The learned Civil Judge also held that the plaintiff has a right to take accounts of the properties to the extent of his share. A decree for Rs. 4380 has also been passed against defendants Nos. 9 to 11. Aggrieved by the judgment and decree passed in that suit, defendantsNos.9 to 11 filed an appeal in District Court, Panchmahals. As the said appeal was filed beyond the prescribed period of limitation they filed Civil Miscellaneous Application No. 34 of 1984 for condonation of delay in filing the said appeal. The learned Joint District Judge dismissed the said application. Aggrieved by the judgment and order passed by the learned Joint District Judge rejecting the prayer for condonation of delay and dismissing the application, original defendants Nos. 9 to 11, i.e. State of Gujarat, Union of India and Deputy Custodian of Evacuee Property, have filed this revision application.

(2.) What is contended by the learned Assistant Government Pleader appearing for the petitioners is that the lower Appellate Court ought to have granted the application for condonation of delay. He submitted that in matters of condonation of delay, the Courts should be liberal and unless it is found that the party concerned was negligent, he should not be deprived of an opportunity of prosecuting his remedy in a Court of law. It is no doubt true as contended by the learned Assistant Government Pleader that Courts have to adopt reasonable approach in such matters and condone the delay where Courts find that the delay has occurred not as a result of negligence or when Courts find that the party was taking appropriate steps and had not slept over the matter but for some circumstances beyond his control he could not file the appeal within time. So far as the facts of this case are concerned, it becomes clear that even though the petitioners were aware of the decision which had gone against them, they did not take any step for the purpose of filing an appeal till the period of limitation was over. It is only thereafter that they considered the matter and ultimately decided to file an appeal. This has resulted in a delay of 300 days in filing the appeal. As stated above, even after coming to know about the adverse decision, the petitioners did not take steps for the purpose of filing an appeal against the same. They slept over the matter and woke up at a very late stage in the subsequent proceeding and started taking steps for considering whether to file an appeal or not, and ultimately decided to file the same after about 300 days. This is a clear case of negligence and, therefore, the lower Appellate Court was justified in not condoning the delay.