filing of delay condonation and restoration of suit by a stranger is unsutainable-SC
Case title: – Vijaylaxman Bawe v. P & S Nirman PVT LTD
Case no: – Civil Appeal —-of 2024 arising from SLP 4034 of 2023
Dated on: – 8th May 2024
Quorum: – Justice B R Gavai and Sandeep Mehta
Facts of the case:
The present appeal is against the judgment passed by the High Court of Bombay whereby the High Court dismissed the revision application of the appellants herein filed for challenging the order of the Civil Judge for condonation of delay in filing application for restoration and seeking thereby to restore the Special Civil Suit No. 269 of 2002, which was dismissed for want of prosecution.
The present appeal is concerned with lands situated at Sonkhar Village where there are rival claims with respect to the ownership of the suit land. The Government of Maharashtra, through the Special Land Acquisition Officer, acquired the subject land for public purpose, and handed over to (CIDCO). In the year 2002, Special Civil Suit No. 269 of 2002 was filed by the original plaintiff – Pravin Jamndas Thakkar (Kanani) (since deceased and now represented by his legal heirs, in the trial court against the Government of Maharashtra,Special Land Acquisition Officer, Vijay Laxman Bhawe (Defendant No.3) (since deceased and now represented through his legal heirs), Union of India and CIDCO for relief of declaration that the acquisition is illegal, null and void, however if the court upholds acquisition then a declaration that the plaintiff is entitled to 12½ % Gaonthan Extension Scheme,as per the Gaonthan Extension Scheme of CIDCO.
In the year 2005, the original plaintiff – Pravin Jamndas Thakkar passed away. The legal heirs of the original plaintiff, through their Power of Attorney holder, filed application for condonation of delayand for bringing the legal heirs of the plaintiff on record. The trial court allowed the application for condonation of delay as well as the application for bringing the legal heirs on record in the subject suit. However, the trial court dismissed the subject suit for want of prosecution. On 7th November 2019, respondents No. 2 and 3, i.e., the legal heirs of the plaintiff, filed application, seeking condonation of delay of 8 years and 4 days in filing an application for restoration of subject suit. This application is still pending adjudication. Meanwhile, Respondent No. 1, a private limited company, claiming to be the “assignee”, filed an application, seeking condonation of delay of 9 years and 11 months in filing the application for restoration of the subject suit. The trial court allowed the restoration application. Aggrieved by the order, the appellants filed Revision Application before the High Court. The High Court, dismissed the civil revision application. Being aggrieved thereby, the present appeal is filed.
Issue:-
1. Whether the trial court was right in allowing the application of the Respondent for restoration of suit?
Legal provisions:-
Impleading Legal Heirs and restoration of suit under Cpc.
Contentions of the Appellant:-
The respondent No.1 is totally a stranger to the proceedings. When an application is filed by the legal heirs of the original plaintiff, i.e. respondents No. 2 and 3 for condonation of delay in filing an application for restoration of the subject suit is pending since 7th November 2019, the learned trial court ought not to have considered the application filed by a stranger. The subject suit itself is a frivolous one. The suit land belonged to the predecessors of the appellants and it was acquired by the State and the compensation was duly received by the appellants. The proceedings for enhancement are also pending before the High Court. It was argued that entertaining the application of a stranger for condonation of delay is mockery of justice.
Contentions of the Respondent:-
The respondent No.1 has accrued a right on account of an Agreement entered between it and the legal heirs of the original plaintiff. As the respondents No.2 and 3 were not prosecuting the application for condonation of delay for restoration of the subject suit, respondent No.1 was justified in filing such an application.
Courts judgement and analysis:-
The approach of the trial court in entertaining the application of respondent No.1 is unsustainable in law that too when the claim of respondent No.1 is on an unregistered Agreement for Sale. Further, entertaining an application by a stranger for condonation of delay and restoration is totally unsustainable in law. The respondent No.1 has not even been impleaded in the subject suit and hence filing the application filed by a stranger, who is not a party to the proceedings, is totally illegal. If the approach adopted by the trial court is approved, any person can move application for condonation of delay and restoration of the suit even if the person is not a party to the subject suit especially when an application for condonation of delay and for restoration filed by the legal heirs of the original plaintiff is pending since 7th November 2019.
It is difficult to understand as to what was the need for the trial court to entertained the application after a period of two years. The trial court could have decided the application on merits. Though, it was argued by the appellants before the High Court that respondent No.1 was a stranger and the reasons given for condonation of delay did not constitute the “sufficient cause”, the High Court totally ignored the same. In light of the view taken, the reasoning given by the trial court as well as the High Court for condoning such an inordinate delay will not come under the ambit of “sufficient cause” as has been discussed by this Court in a catena of judgments. The order of the trial court as well as the High Court are not sustainable in law. The appeal is therefore allowed.
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Judgement reviewed by- Parvathy P.V.