THE STATE ORGANIZATION OF OBSTETRICS & GYNECOLOGICAL SOC….Applicant(s) Versus STATE OF GUJARAT THROUGH THE SECERATARY & 6….Respondent(s)

C/CA/556/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 556 of 2013 In LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1547 of 2012 In SPECIAL CIVIL APPLICATION NO. 11531 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.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 ? ================================================================ THE STATE ORGANIZATION OF OBSTETRICS & GYNECOLOGICAL SOC….Applicant(s) Versus STATE OF GUJARAT THROUGH THE SECERATARY & 6….Respondent(s) ================================================================ Appearance: MR HEMANG M SHAH, ADVOCATE for the Applicant(s) No. 1 Page 1 of 15 C/CA/556/2013 JUDGMENT MS RV ACHARYA, ADVOCATE for the Respondent(s) No. 2 – 3 , 5 – 6 MR NJ SHAH, AGP for the Respondent(s) No. 1 & 4. ================================================================ CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH Date : 04/03/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE S.G.SHAH) The applicant is an organization of Obstetrics & Gynecological Society of Gujarat, which has preferred Letters Patent Appeal against the judgment and order dated 26/2/2010 passed by the Ld. Single Judge in group of Special Civil Applications having the leading Number of Special Civil Application No. 11531/2006. 2 It is clear that the present applicant was not a party in such impugned order dated 26/2/2010 and, therefore, they have preferred Civil Application No. 13703/2012 for leave to appeal on 29/11/2012. By an order dated 8/1/2013, leave to appeal was allowed. 3 Heard Ld. Sr. Counsel Mr. Shalin Mehta with Mr. Niranjan M Shah for the applicant and Ms. R V Acharya, Ld. Advocate for the respondent nos. 2 and 3, whereas Ld. AGP Mr. N J Shah for respondent nos. 1 and 4. Rest of the respondents are though served, they have chosen to remain away from such litigation. However, it cannot be Page 2 of 15 C/CA/556/2013 JUDGMENT ignored that one of them being respondent no. 7 is original petitioner in Special Civil Application No. 11531/2006, order of which is challenged in the Letters Patent Appeal [Stamp] No. 1547/2012. 4 Ld. Counsel for the applicant has submitted that sum and substance to justify the delay is narrated in para. 9 of the application. On perusal of record, it transpires that till paras. 8 of the application, history of the litigation is narrated with reproduction of the operative part of the impugned order and cause and justification for delay, as confirmed by the Ld. Counsel for the applicant, is only in para. 9. On careful reading of such reasons, for condonation of delay of 978 days caused in filing Letters Patent Appeal, are to the effect that – ….. Communications from the Government and Appropriate Authority were received only on 22/5/2012, 30/5/2012 and 7/7/2012 – Consultation was taken place between Doctors at local level i.e. local association. Discussion was initiated with State Level Functionaries. Communications were carried out on phone Some time was taken in receiving the response from local association Page 3 of 15 C/CA/556/2013 JUDGMENT Meetings were held to discuss and decide the future course of action Doctors began the task of raising funds for litigation At the end due to Diwali vacation, there was some delay. 5 However, this Court does not find any of the above grounds as sufficient and reasonable cause for not filing the appeal in time by the association of Doctors in the proceedings which were initiated for breach of the provisions of The Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Act, 1994 [for short ‘PNDT Act’]. 6 Though in general, merits of the matter may not be looked into while considering the contention of delay, when Ld. Counsel for the applicant has referred the issue arguing that it affects the entire society and more particularly all the associations, then it becomes the public interest litigation. Even in the application itself, the applicant has contended that during the course of discussion it was found that other Doctors associated with other associations were also affected by such communication i.e. impugned order and hence present applicant thought it fit to initiate discussion with different functionaries. In view of such fact, if Page 4 of 15 C/CA/556/2013 JUDGMENT there is a public interest, then also the present applicant alone has no reason to file such Letters Patent Appeal, more particularly when such association was not party in Special Civil Application i.e before the Ld. Single Judge where impugned order was passed. 7 As stated earlier, though impugned order is not to be looked into for consideration of cause of delay, when the applicant itself has referred such order, we have no option but to record that by passing such order, the Ld. Single Judge has practically quashed and set aside the order impugned before it by the concerned authorities and thereby such authorities, which are also respondents in the present appeal, were directed to remove the seals applied in the examination rooms of the respective nursing homes/ clinics, where sonography machines were kept for the same, were not removed so far. The only grievance of the present appellant/applicant is with regard to directions issued by the Ld. Single Judge in para. 11 of the impugned judgment. Though all such directions are not relevant for consideration of an application for condonation of delay, it is sufficient to record that for passing such direction, the Ld. Single Judge has practically relied upon the consensus and suggestions made by the respective parties Page 5 of 15 C/CA/556/2013 JUDGMENT because it is categorically stated in para. 11 that “After hearing both the sides and after having gone through the suggestions made by the respective parties, the following directions are issued so as to see that the purpose and object for which the PNDT Act was enacted is not frustrated. ..” 8 It is, therefore, clear that by the impugned order, practically the directions were issued because of admission and consensus between the parties though some of the respondents have without admitting the fact, tried to support the application for condonation of delay on the ground that directions in the impugned order are not practical and cannot be fully acted upon or implemented. However, on such ground, delay cannot be condoned since condonation of delay is subject to legal limitation regarding sufficient cause which can be considered for condoning such delay and looking to the reasons for delay as explained by the applicant in para. 9 of the application and listed herein, it cannot be said that any of the grounds is sufficient for condoning long delay of 978 days in challenging such order. On the contrary, respondent no. 5 has filed an affidavit-in-reply, categorically opposing the condonation of delay, submitting that present application does not contain any Page 6 of 15 C/CA/556/2013 JUDGMENT justification much-less any sufficient cause for condoning inordinate delay in filing Letters Patent Appeal, since date of receipt of judgment by the applicant is not disclosed and there is no explanation for delay of 978 days. The respondent is relying upon the decision of the Hon’ble Apex Court in the case of Lanka Venkateswarlu v. State of Andhra Pradesh reported in 2011 [4] S.C.C. 363. 9 In following judgments also Hon’ble the Apex Court has held and confirmed that delay cannot be condoned mechanically and if there is no sufficient cause and explanation for condonation of delay, the same can be refused. 9.1 (2012)8 SCC 524 – Cicily Kallarackal Vs. Vehicle Factory – wherein the Apex Court has
held that if there is no sufficient cause, inordinate delay would amount to substituting the period of limitation prescribed by statute. Therefore, outcome of such judgment is simple that for condonation of delay there must be sufficient cause, thus it cannot be said that delay cannot be condoned even if there is sufficient cause. 9.2 ( 2012)5 SCC 157 – Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai – wherien the Apex Court has dealt with Section 5 of the Limitation Act and more particularly Page 7 of 15 C/CA/556/2013 JUDGMENT expression ‘sufficient cause’. It is clarified and discussed with reference to object of Limitation Act and extent of leniency to be shown in public interest in condonation of delay by State machinery. Though High Court’s order to condone the delay was set-aside by the Apex Court, it was held that expression ‘sufficient cause’ should be construed liberally on facts without any hard and fast rules. It is further stated that substantive right of parties should not be ignored because of delay, but a distinction must be made between the delay of few days and inordinate delay causing prejudice to the other side and that no premium can be given to total lethargy or utter negligence. It is further stated that condonation of delay cannot be held as a matter of course by accepting the plea that dismissal of the matter on the ground of limitation will cause injury to public interest. In this reported case, there was delay of seven years and, therefore, the Apex Court has observed as such and refused to condone the delay, more particularly when explanation for such delay was prima-facie found as concocted and causing prejudice to private appellant when the issue was pertaining to demolition. It is further observed that explanation regarding advocate’s transfer has no bearing on the issue and that explanation offered was silent about the Page 20 Page 8 of 15 C/CA/556/2013 JUDGMENT of events and persons involved and credible causes for such delay. Therefore also, though in this reported judgment, delay has not been condoned, it cannot be the rule of law that delay cannot be condoned even if sufficient cause is shown, because in the present case, condonation of delay was practically refused because of the particular facts on record – delay of seven years with absence of proper explanation and concocted explanation for condonation of delay. Therefore, unless there is such reason in the case on hand, such decision cannot be applied to every cases blindly without verifying that whether cause for delay is sufficient or not. 9.3 (2012)3 SCC 563 – Post Master General & Ors. Vs. Living Media India Ltd. & Ors. – wherein also the Apex Court has dealt with ‘sufficient cause’ with reference to Section 5 of the Limitation Act, 1963. The Apex Court has held that if there is non-explanation of sufficient cause, and if there is absence of diligence by Department in prosecuting matter, inspite of another opportunity of filing ‘better affidavit’ being granted, it was held that condonation of delay is exception and should not be used as an anticipated benefit for government departments. Therefore, again this decision is based upon the particular facts and circumstances on record Page 9 of 15 C/CA/556/2013 JUDGMENT before the Apex Court wherein the Apex Court has found that there is negligence on the part of the Government and there is non-explanation of sufficient cause. Therefore, only because of such judgment, it cannot be said that delay cannot be condoned in all cases even if sufficient cause is proved. 9.4 ( 2010)8 SCC 685 – Balwant Singh (Dead) Vs. Jagdish Singh and Others – wherein the Apex Court has again dealt with express ‘sufficient cause’. But, it is categorically stated that ‘sufficient cause’ implies presence of legal and adequate reasons and there cannot be straitjacket formula uniformly applicable to all cases without reference to the particular facts and circumstances of a given case. Therefore, it is to be decided by the Court whether or not a cause is sufficient and whether it could have been avoided by the party by exercise of due care and attention. Therefore, only because of denial of condonation of delay in few cases would not amount to a straitjacket principle of law that delay cannot be condoned irrespective of sufficient case shown. 9.5 (2010)5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation & Anr. – wherein though Page 10 of 15 C/CA/556/2013 JUDGMENT the Supreme Court has directed probe to be conducted against defaulting officials of respondent Corporation for fixing accountability while denying to condone the delay, the fact remains that in the given case before the Apex Court, there was false statement made to explain the delay and when litigant did not approached the Court with clean hands, the Apex Court had no option, but to take serious view of the matter. However, while defining the term ‘sufficient cause’, the Apex Court has categorically observed and held that Courts bestowed with power to condone delay, if sufficient cause is shown and that term ‘sufficient cause’ elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay and that liberal approach in condoning the delay of short duration with stricter approach in case of inordinate delay is required. It is further stated that certain amount of latitude not impermissible with regard to the State because State represents collective cause of the community and decisions are taken by the Officers/agencies i.e. more than one person. Therefore, even in the case cited by the opponent, the Apex Court has categorically stated in paragraph 15 that no hard and fast rule can be laid down in dealing with the application for Page 11 of 15 C/CA/556/2013 JUDGMENT condonation of delay. 9.6 (2008)17 SCC 448 – Pundlik Jalam Patil (Dead) Vs.Executive Engineer, Jalgaon Medium Project & Anr. – the Apex Court has refused to condone the delay mainly because of the reason that the Court was of the opinion that there was fraud on Court by public authority when false plea was taken with incorrect statement made in application seeking condonation of delay itself and, therefore, it was held that it is sufficient to reject such application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay or not. Therefore, unless there is a proof or pleading regarding fraud committed with the Court proceeding only because of such judgment, it cannot be held that delay cannot be condoned in any case. 9.7 (1997)7 SCC 556 – P.K. Ramachandran Vs.State of Kerala & Anr. – wherein the Apex Court has refused to condone the delay because there was no explanation much less reasonable or satisfactory explanation offered by the State for condonation of delay in application for the purpose. Though it was seriously opposed, the same was allowed by the High Court without taking into consideration of all the aspects touching to Page 12 of 15 C/CA/556/2013 JUDGMENT such subject. However, only for such citation, it cannot be held that delay cannot be condoned even if there is sufficient cause. 9.8 2012(7) SCALE 230 – B.Madhuri Goud Vs. B. Damodar Reddy – the Apex Court has refused to condone the delay of almost four years to setaside the ex-parte decree since the ground pleaded for condoning delay was that the documents were misplaced by the office of the advocate and inadvertently tagged with the record of another appeal, but the affidavit of concerned advocate was not filed on record. Therefore, in such case, when cause was not supported by affidavit, Apex Court has decided not to condone the delay. Hence, in absence of such proof, it cannot be said that delay cannot be condoned even if sufficient cause is pleaded and proved on record. 9.10 The sum and substance of all above decisions makes it clear that there cannot be a straitjacket formula or rule either for condonation of delay or to re
ject the condonation of delay and that every case is to be decided considering the facts and circumstances of that case only. The only requirement for condonation of delay is that whether there is ‘sufficient cause’ for the litigant not to initiate the Page 13 of 15 C/CA/556/2013 JUDGMENT litigation in prescribed time of limitation. In all the cases cited above, there is either inordinate delay, which was never explained or there was misrepresentation or fraud and, therefore, the Apex Court has held that in such cases, delay cannot be condoned. However, it cannot be ignored that in almost all such judgments, the Apex Court has categorically observed and held that if sufficient cause is shown, delay can be condoned and that term ‘sufficient cause’ elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay. 10 It is also to be noted that in fact, the impugned order dated 26/2/2010 was assailed in Letters Patent Appeal Nos. 320/2011 to 324/2011, which were dismissed by an order dated 20/6/2011. Thus, once regular Letters Patent Appeals against the impugned order have been dismissed by this Court, there is no reason to entertain second Letters Patent Appeal against the same impugned order, which is filed by the Association. Probably original petitioner in the impugned order may be one of the members of the Associations, which are referred by the petitioner in para. 9. Therefore, practically, Page 14 of 15 C/CA/556/2013 JUDGMENT original petitioner, who was unsuccessful in assailing the impugned order, had probably taken shelter of different Associations to challenge the same order, which is otherwise final by above referred order dated 20/6/2011 passed in Letters Patent Appeal Nos. 320/2011 to 324/2011. 11 In view of the above facts and circumstances, there is no sufficient cause and justification shown by the applicant which can be considered as a sufficient cause and legal and proper justification so as to exercise the discretion of condonation of delay by this Court. Therefore, the application deserves to be dismissed and it is accordingly dismissed. Rule is discharged. (V.M.SAHAI, J.) (S.G.SHAH, J.) * Pansala. Page 15 of 15

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