CAV JUDGMENT

1. RULE. Mr. Jigar G. Gadhavi, learned advocate waives service of rule for respondent No. 1. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:-

“11A. Under the circumstances the delay in filing the Restoration Application No. 29 of 2011 and Misc. Application No. 54 for condonation of delay may be allowed setting aside the order made by the Hon'ble co. Operative Tribunal dated 17.07.2008 in the Misc. Application No. 2 of 2007 and also setting aside the order dated 05.08.2011 and the Restoration Application No. 54 of 2011 may be taken of the Register of the Hon'ble Gujarat State Co. Operative Tribunal.

B. Under the circumstances it is prayed that the Misc. Application No. 54 of 2011 of the Restoration Application No. 30 of 2011 may be allowed and the order of the Hon'ble Tribunal dated 05.11.2011 may set aside and the Misc. Application No. 3 of 2008 may be reheard pending hearing of this petition the order made by the Court of Board of Nominee at Mehsana in the Lawad Suit No. 1776 of 1991 (New No. 426 of 2000) may be stayed in the interest of justice.”

2. The facts arising out of this petition are that the wife of the present petitioner - late Kantaben Rameshchandra had purchased plot No. 32-B situated at Village Nagalpur, District Mehsana in Bhairavkrupa Cooperative Housing Society Ltd. (hereinafter referred to as “the society”) at a price of Rs. 11,000/- from respondent No. 2 - Bhavnaben Hareshkumar by a registered sale deed dated 23.3.1988 It is the case of the petitioner that in the said registered sale deed it was clearly mentioned that the predecessor in title Bhavnaben had not taken any loan from the society concerned and there was also statement in the said sale deed that no right or encumbrance created upon the land in question being plot No. 32-B. It is the case of the petitioner that on production of photocopy of the said sale deed, the petitioner was also inducted as member of the society. It is further the case of the petitioner that even at that stage, it was neither brought on record, nor mentioned that a loan was taken from Gujarat State Cooperative Housing Finance Ltd. upon the land in question. The petitioner thereafter constructed a tenement from his own funds and it is his case that no loan was availed either from the society or from the Gujarat State Cooperative Housing Finance Ltd. It further transpires from the record that thereafter, Lavad Suit came to be filed before the Board of Nominees at Mehsana being Lavad Case No. 388 of 1994. The said suit came to be decreed against which an appeal being Appeal No. 271 of 2002 came to be filed before the Gujarat State Cooperative Tribunal. The judgment and award passed in the said Lavad Suit was confirmed by the Gujarat State Cooperative Tribunal and the appeal came to be dismissed. The petitioner approached this Court by way of filing Special Civil Application No. 665 of 2011 which was disposed of and the petitioner thereafter paid a sum of Rs. 3,20,000/- as per the order passed by this Court.

3. After the said order was passed, notice has been issued by the respondent society asking the petitioner to pay Rs. 15,225/- towards the loan amount taken by the society. It is the case of the petitioner that the notice was also issued by the Gujarat State Cooperative Housing Finance Ltd. upon the husband of the present petitioner who is power of attorney holder. It further transpires that the Gujarat State Cooperative Housing Finance Ltd. also informed respondent No. 1 that the plot in question shall be transferred only after taking consent from it. It further transpires from the record that respondent No. 1 thereafter issued further notice to the petitioner and was to take steps for sealing the premises. The said action of the respondent society was subject matter of challenge before the Board of Nominees, Mehsana being Lavad Case No. 426 of 2000 (old number being Lavad Case No. 1776 of 1991). In the said suit, initially, the Board of Nominees granted ad-interim injunction as prayed for. However, the said injunction application being Exh.6 in the said Lavad Suit came to be dismissed vide order dated 15.7.1992 The petitioner's wife Kantaben preferred Revision Application No. 151 of 1992 before the Gujarat State Cooperative Tribunal, Ahmedabad which was allowed by the Tribunal. It further transpires that ultimately, the main suit i.e Lavad Case No. 426 of 2000 (old number being Lavad Case No. 1776 of 1991) was finally heard and by an order dated 11.8.2006, the Board of Nominees dismissed the same.

4. The record further reveals that the petitioner thereafter preferred an appeal with an application for condonation of delay of 2 months and 9 days being Misc. Application No. 3 of 2007. It is the case of the petitioner that the learned advocate for the petitioner could not remain present and therefore, the said application was dismissed for non-prosecution vide order dated 17.7.2008

5. The record further transpires that being aggrieved by the said order of dismissal, the petitioner herein filed Restoration Application being Restoration Application No. 30 of 2011 along with an application for condonation of delay being Misc. Application No. 54 of 2011. The said Misc. Application No. 54 of 2011 for condonation of delay came to be dismissed vide order dated 5.8.2011 Being aggrieved by the said order dated 5.8.2011, the present petition is filed.

6. This Court vide order dated 25.11.2011 was pleased to issue notice.

7. Mr. Ashok K. Padia, learned advocate for the petitioner has taken this Court through the common order impugned in the present petition dated 5.8.2011 It is submitted that the petitioner is aged about 75 years and is weak and feeble and is suffering from Asthama since last 3 years. It is submitted that as the learned advocate, who represented the petitioner expired on 7.11.2010 and that the learned advocate never informed about the order dated 17.7.2008, however, on the contrary whenever the petitioner tried to know about the status of the matter, his learned advocate informed the petitioner that as and when the matter comes up for hearing, the same shall be intimated. It is submitted that on 20.1.2011, the petitioner came to know about the order of dismissal dated 17.7.2008 and therefore, the Tribunal ought to have considered these facts to be reasonable and sufficient cause for not preferring the Restoration Application within time. It is submitted that as such there is only one month's delay in preferring the Restoration Application from the date of the knowledge of the petitioner.

8. As against this, Mr. Jigar G. Gadhavi, learned advocate for respondent No. 1 pointed out that even if it is believed that the petitioner came to know about the order of dismissal dated 17.7.2008 on 20.1.2011, even thereafter the Restoration Application was preferred on 4.4.2011 i.e after a period of three months from the date of the knowledge. It is submitted that even if a lenient view is taken by this Court as far as the condonation of delay in the Restoration Application is concerned, the petitioner should be saddled with appropriate heavy exemplary costs for the same. It is submitted that even though it is prayed for in the present petition that Restoration Application No. 30 of 2011 may be allowed, such a prayer cannot be granted as the Tribunal has not dealt with the said application on merits.

9. Considering the facts and more particularly the fact that the learned advocate, who was representing the petitioner before the lower Court, has unfortunately expired on 7.11.2010 and it appears from the record that the petitioner came to know about the order of dismissal dated 17.7.2008 only on 20.1.2011 as well as considering the fact that the petitioner is aged about 75 years and is suffering from illness, it would be appropriate to consider this case only for condonation of delay in preferring the Restoration Application. It further transpires from the record that because of some miscommunication between the learned advocate representing the petitioner before the lower Court and the petitioner, the Restoration Application could not be filed within the statutory time limit. Without going into the merits of the Restoration Application, it would, therefore, be appropriate to condone the delay in preferring Restoration Application No. 30 of 2011 and the interest of justice would be served if Misc. Application No. 54 of 2011 is allowed by condoning delay and remitting the matter back to the Gujarat State Cooperative Tribunal for hearing of Restoration Application No. 30 of 2011 on its own merits. Mr. Jigar Gadhavi, learned advocate for respondent No. 1 is right in submitting that even if considering the old age of the petitioner and the circumstances emerging from the record of the petition, as discussed hereinabove, a lenient view is taken by this Court and the petitioner should be saddled with appropriate costs.

10. In view of the foregoing discussion, common order dated 5.8.2011 passed in Misc. Application No. 54 of 2011 is hereby quashed and set aside and the delay in preferring the Restoration Application is hereby condoned on condition that the petitioner shall deposit a sum of Rs. 5,000/- (Rupees five thousand only) before this Court within a period of seven days from today and respondent No. 1 shall be permitted to withdraw the same.

11. The Tribunal shall consider the Restoration Application No. 30 of 2011 on its own merits, without being influenced by the fact that this petition is partly allowed by condoning the delay in preferring the said Restoration Application, after giving an opportunity of being heard to both the parties. It is also made clear that this Court has not dealt with the Restoration Application on merits and it would be open for the parties to raise all contentions available before the Gujarat State Cooperative Tribunal.

12. Resultantly, therefore, the petition is partly allowed. Rule is made absolute to the aforesaid extent.