Rameshbhai Gandubhai Gujarati vs Shantaben Keshubhai Gujarati

Gujarat High Court

Rameshbhai Gandubhai Gujarati vs Shantaben Keshubhai Gujarati on 23 April, 2025

                                                                                                                 NEUTRAL CITATION




                           C/SCA/10144/2010                                      JUDGMENT DATED: 23/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 10144 of 2010

                       FOR APPROVAL AND SIGNATURE:
                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                       ==========================================================

                                   Approved for Reporting                       Yes           No

                       ==========================================================
                                         RAMESHBHAI GANDUBHAI GUJARATI & ORS.
                                                        Versus
                                         SHANTABEN KESHUBHAI GUJARATI & ANR.
                       ==========================================================
                       Appearance:
                       MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1,2,3
                       MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No. 1,2
                       MR RR TRIVEDI(941) for the Respondent(s) No. 1,2
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 23/04/2025

                                                            ORAL JUDGMENT

1. The present writ application is filed under Article 227 of the Constitution of India seeking the following reliefs :

"(A) To admit this petition;

(B) To issue an appropriate writ, order or direction quashing and setting aside the order dated 29.5.2010 passed by the Presiding Officer, Fast Track Court No. 7, Gondal Camp Jetpur in Civil Misc. Application No. 407 of 2009 thereby allowing the said application of the petitioners by condoning the delay in preferring the appeal and further be pleased to direct that the appeal of the petitioners be heard and decided in merits;

NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined (C) During pendency and final hearing of the petition be pleased to transfer, alienate, create any charge or interest in the suit land ile tand bearing Survey No. 166 admeasuring 1-49-73 H-Are-Sq. Mtr situated at village Bava Pipaliya in any manner whatsoever, (D) Grant any other and further reliefs which deems fit and proper in the interest of justice. "

2. The parties will be referred as far as possible as per their original position in the suit.

3. The short facts of the case are as follows :

3.1 The petitioners herein are original defendants in Regular Civil Suit No. 66 of 1995 filed by respondent no. 1 seeking declaration and injunction, appeared through their lawyer and filed their written statement, but thereafter never turned up to submit their oral and documentary evidence in support of their defense. Whereas, the plaintiff submitted her oral and documentary evidence and examined witnesses to prove her case.

3.2 The trial Court, vide its judgment and decree dated 29th April 2002, allowed the suit in favour of the plaintiff and Page 2 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined granted the declaration and injunction as prayed for in the suit.

3.3 The defendants did not challenge that said judgment and decree for quite a long time but subsequently filed a Regular Civil Appeal in the year 2009. As there was a delay of seven years and six months in filing the appeal, the defendants preferred an application to condonation of such delay.

3.4 It further appears that during the interregnum, prior to filing the appeal, the plaintiff sold the suit land in favour of respondent no. 2, whereupon the defendants preferred the appeal proceedings as well as the delay condonation application. The respondents opposed the delay application by filing their reply, contending inter alia that the defendants were not aware of the judgment and decree passed by the trial Court in the year 2002, since, following that decree, a mutation entry was made by the Revenue Authority and before doing so, a notice was issued under Section 135D of the Page 3 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined Bombay Land Revenue Code, which was sent to the defendants by UPC and served on 29th October 2002. The necessary postal certificate was submitted by respondents with their reply opposing delay application.

3.5 It was further contended that, the defendants had not participated in the suit proceedings and remained negligent all throughout and having not disclosed sufficient cause in the delay application, it was prayed to reject the delay application as the same was devoid of merit and lacked bona fide.

3.6 After hearing the parties, the Appellate Court, vide its order dated 29th May 2010, rejected the delay condonation application filed by the defendants, thereby refusing to condone the delay in filing the appeal. Aggrieved by that order, the defendants have preferred the present writ application.

4. Submissions of the Petitioners - defendants:

4.1 Learned counsel Mr. Prateek Jasani appearing for the Page 4 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined petitioners - original defendants would submit that, the Appellate Court erroneously rejected the delay application without considering that the defendants were in fact not aware of the judgment and decree passed by the trial Court. 4.2 Learned counsel Mr. Jasani would further submit that, the defendants were not informed about the passing of the judgment and decree by trial Court by their lawyer, which caused the delay in filing the appeal.

4.3 Learned counsel Mr. Jasani would further submit that, when the plaintiff sold the suit land in favour of respondent no. 2 in the year 2009, the defendants came to know of the judgment and decree upon seeing the mutation entry No. 1235 in favour of respondent no. 2, which has been also challenged before the competent Revenue Authority. 4.4 Learned counsel Mr. Jasani would further argue that, the defendants are not educated and were not well versed in legal proceedings and having not been properly advised by their Page 5 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined lawyer at the relevant time, resulted in the passing of the judgment and decree as well as the delay in filing the appeal. 4.5 Learned counsel Mr. Jasani would further submit that, the defendants have a good case on merits and if the delay had been condoned, they could have substantiated their case before the Appellate Court, thereby the appeal could have been decided on its merits.

4.6 Learned counsel would further submit that, the length of delay is not a ground to reject delay application but where there is a sufficient cause made out, the Appellate Court ought to have taken a liberal approach and could have condoned the delay, possibly by imposing costs.

4.7 To buttress his arguments, Mr. Jasani relies upon the decision of Hon'ble Apex court in case of Inder Singh vs. State of Madhya Pradesh reported in 2025 (O) AIJEL - SC 74939 :

2025-INSC-382.

NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined 4.8 Making the above submissions, learned counsel Mr. Jasani requested this Court to allow the present writ application.

5. Submissions of the Respondents - Plaintiff/Respondent No.2 :

5.1 Per Contra, Learned counsel Mr . B. B. Trivedi appearing for the respondents - original plaintiffs would submit that, there was gross negligence on the part of the defendants resulting in a delay of seven years and six months in filing the appeal and therefore no error was committed by the Appellate Court in rejecting the delay application. 5.2 Learned counsel Mr. Trivedi would further submit that, no sufficient cause was made out in the delay application, which was bereft of particulars, as the defendants were represented by lawyer throughout and thus could not claim ignorance of procedural developments.

5.3 Learned counsel Mr. Trivedi would further submit that, the defendants did not lay any evidence or participate in the trial Page 7 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined of the suit and cannot now blame their advocate, since there is nothing on record to suggest they contacted their lawyer during the suit's pendency, thereby indicating their own negligence. Considering the defendants' conduct during trial and post judgment, it is apparent that there was gross negligence on their part in not filing the appeal within a reasonable time.

5.4 Learned counsel Mr. Trivedi would further submit that, notice was served in the year 2002, under section 135D of the Bombay Land Revenue Code and proof of service was filed, which the defendants did not controvert, indicating their awareness of the judgment and decree. Therefore, they suppressed material facts and are not entitled to equitable relief.

5.5 Learned counsel Mr. Trivedi would further submit that, after passing of decree by trial Court and prior to filing of appeal, third party interest has been created having sold suit Page 8 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined property in favour of respondent no.2 then serious prejudice would be caused if delay would have been condoned by appellate court. So, according to him, this Court should not interfere with impugned order.

5.5 Lastly, learned counsel Mr . Trivedi would submit that, none intimation of judgment and decree by an advocate is not a sufficient cause to condone delay and that under Article 227 of the Constitution of India, the High Court should not interfere with the Appellate Court's discretion unless exercised arbitrarily.

6. No other and further submissions being made by the respective learned advocates.

7. Point for determination:

7.1 The short question falls for consideration of this Court is, whether the impugned order of the Appellate Court refusing to condone a delay of seven years and six months by the defendants is just, proper and in accordance with law or not ?

NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined

8. Analysis :

8.1 The facts as stated above are undisputed. The defendants did not participate in the trial of the suit, having submitted only their written statement without submitting any oral or documentary evidence and thus, did not contest the suit. In contrast, the plaintiff adduced oral evidence, examined witnesses and submitted documentary evidence, and having convinced the trial Court, it decreed the suit in her favour in the year 2002.

8.2 A mutation entry was also mutated in the revenue records in the year 2002, and a notice under Section 135D of the Bombay Land Revenue Code was issued and served on the defendants, albeit through UPC and such a fact, they did not deny before the Appellate Court. This clearly indicates their awareness of the judgment and decree of trial Court in the year 2002 itself. Such a fact, they were expected to disclose in their delay condonation application but failed to do. Instead, the defendants merely stated that they became aware of the Page 10 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined decree upon the mutation of Entry No. 1235 in favour of Respondent No. 2 in the year 2009, without explaining how they came to know of that mutation, more particularly while mutating such entry in year 2009, no notice was served upon them as name of plaintiff has already been mutated earlier in year 2002. This conduct demonstrates that the defendants did not approach the court with clean hands.

8.3 At this stage, it is necessary to observe that when there is a mis-statement, incorrect statement, and/or suppression of material facts by an applicant seeking condonation of delay -

which is an equitable and discretionary relief - such suppression/misstatement/incorrect fact dis-entitles the applicant from obtaining the relief sought.

8.4 It would be profitable to rely upon the observations made by the Honourable Supreme Court of India in case of Pundlik Jalam Patil vs. Executive Engineer, Jalgaon Medium Project, (2018) 7 SCC 448, reads as under;

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NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined "11.Whether the respondent made incorrect statement in the application seeking condonation of delay? There is no dispute whatsoever that the respondent being the beneficiary of the acquisition has been duly impleaded as a party respondent in the reference cases as is required in law. It not only appeared in the matter through a properly instructed counsel but also filed its written statement opposing the claim for enhancement of compensation but did not choose to lead any evidence whatsoever. In the application filed in the High Court the plea taken by the respondent is as under:

"The applicant submits that, although the applicant being Acquiring Body, was arrayed as opponent in the said reference, the opponent no. 4 herein (Original Opponent No. 1) S.L.A.O. or his subordinate contested the said reference by filing written statement. Therefore, this applicant was unaware about the stand taken by S.L.A.O. as well as the impugned judgment and award."

This averment in the application on the face of it is totally incorrect. [12] The Law & Judiciary Department as early as on 13.4.2000 i.e. to say within the period of 15 days from the date of the award of the Reference Court communicated its decision to acquiesce in the decision of the Reference Court and communicated the same to all the concerned including the beneficiary of the acquisition. It is not the case that the Executive Engineer did not receive the said communication. Having received the said communication the respondent did not act in the matter and initiated any steps for filing the appeals if it was really aggrieved by the decision of the Reference Court. Page 12 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025

NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to somehow get the relief from the court. In our considered opinion incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning delay. [See: (1993)1SCC 572].

13.Whether the High Court properly exercised its discretion?

The High Court in its order having noticed the relevant fact in categorical terms held that there was no substance in the plea that it was unaware about the judgment and award passed by the Reference Court since it was a party before the Reference Court and contested the matter. The High Court also found that the decision of the Joint Secretary to acquiesce was communicated to the beneficiary of the acquisition and therefore, its plea about the unawareness of the award and decision taken by the Government cannot be accepted. The High Court in its order emphatically rejected the ground raised by the respondent in that regard. In such view of the matter can it be said that the High Court properly exercised its jurisdiction? It is true that the power to condone the delay rests with the court in which the application was filed beyond time and decide whether there is sufficient cause for Page 13 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined condoning the delay and ordinarily the superior court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court ."

(emphasis supplied) 8.5 Applying the ratio of Pundlik Jalam Patil (supra), the defendants are not entitled to any equitable and discretionary relief from the Court having not disclosed true and correct facts about factum of receipt of knowledge about judgement and decree passed by trial court.

8.6 It is further required to be noted that, entire blame has been put on the head of the advocate who alleged to have not informed defendants about passing of judgment and decree by Page 14 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined the trial Court. The defendants have not even whispered in their delay application that they were, in fact, in touch with their lawyer during the course of the trial of the suit and receiving updates from their lawyer. Moreover, the defendants have not even stated that they were genuinely keen to participate in the trial but, due to a lack of proper knowledge and information from their lawyer, they were unable to do so. This omission further undermines their claim for condoning the delay, as it suggests their negligence in failing to actively engage with the suit proceedings and so also prior to filing of appeal.

8.7 As such there is no sufficient cause made out in the delay application which is bereft of any particulars and not supported by any documentary evidence to substantiate their statement made in the delay application. The bare reading of delay application coupled with the fact that defendants have not participated in the trial of suit would constitute gross negligence on the part of defendants either in conducting the Page 15 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined trial of suit and / or filing appeal against judgment and decree passed by the trial Court.

8.8 There is no caveat that, while adjudicating delay application, liberal approach is required to be considered by the court, thereby it can hear the matter on merit, but paramount consideration while adjudicating delay application under Section 5 of the Limitation Act would be 'sufficient cause' to be made out by the applicant. Having so observed herein above, neither any sufficient cause is made out by the defendants nor any particulars given in his delay application about such a huge delay in filing the appeal, defendants are not entitled to get any relief. It further appears that such a huge, unexplained delay of seven years and six months in filing the appeal would indicate and constitute negligence on the part of the defendants in pursuing the appeal. Further, third party right has been created as plaintiff has sold suit land in favour of respondent No.2 prior to filing of appeal then by showing any leniency to act of defendants would Page 16 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined definitely prejudice rights of respondents herein which is one of the additional factor would disentitled defendants to claim any discretionary relief from the Court. 8.9 It is now well-settled legal position of law, so far as condonation of delay is concerned, as by now it has been more or less settled down by the Hon'ble Supreme Court. So, It is apt to refer to the following decisions of Honourable Supreme Court on the issue germane in the present writ application.

9. First one which I would like to place reliance upon would be the decision of Honourable Supreme Court of India in a case of Rajneesh Kumar & Anr Vs. Ved Prakash reported in 2024 (14) SCALE 406 wherein held as under:-

"[10] It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers of negligence and carelessness in attending the proceedings before the court. Even if we assume for a moment that the concerned lawyer was Page 17 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief.

[12] As regards the law of limitation, we may refer to the decision of this Court in Bharat Barrel & Drum MFG Go. v. The Employees State Insurance Corporation, 1971 2 SCC 860, wherein this Court held as under:-

"The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a Court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore, the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims."

(emphasis supplied) Page 18 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined 9.1 It is apposite to refer to and rely upon another decision of the Hon'ble Supreme Court of India in the case of K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors., reported in 2024 (4) Scale 759, wherein, after revisiting the law on the subject of condonation of delay, the Hon'ble Apex Court has held as under:-

"10. There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant (See Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors. (2021) 18 SCC 384). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay (See P.K. Ramachandran v. State of Kerala and Anr., (1997) 7 SCC 556). Thus, it is apparent that the words 'sufficient cause' in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant (See Basawaraj and Anr. v. Special Land Acquisition Officer., (2013) 14 SCC 81). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649, and are reproduced as under:

"21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while Page 19 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be Page 20 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted, or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation."

(emphasis supplied) 9.2 It is also profitable to refer to and rely upon ratio laid down by recent past decision of Honourable Supreme Court of India in a case of Pathapati Subba Reddy (Died) BY L RS & ORS Vs. Special Deputy Collector (LA) reported in 2024 INSC 286 : 2024 (4) SCR 241 : 2024 (4) Scale 846 wherein after referring to its previous decisions, summarized the case law on the issue of limitation vis-a-vis condonation of delay in context of "sufficient cause". It has been so observed and held as Page 21 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined under :

"[26] On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

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(vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."

(emphasis supplied) 9.3 Lastly, it is also profitable to rely upon the decision of the Hon'ble Supeme Court of India in the case of case of Basawaraj and Another v. Special Land Acquisition Officer reported in 2013 (14) SCC 81 wherein it is held as under:-

"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no Page 23 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

(emphasis supplied)

10. The judgment cited by learned advocate Mr. Jasani is distinguishable on facts; for instance, in Indra Singh (supra), the dispute involved between the State and a private party, with active participation and contest on merits from the outset, unlike the present case. The High Court in that case, having condoned the delay was challenged by private party before Apex Court. So, considering such background of facts, Apex Court has not interfered with the order of high court condoning the delay. As such facts on hand and cited case are not similar but quite distinguishable on all respect and especially in case on hand, appellate court has not used its discretion in favour of defendants by observing no sufficient cause made out by them. Thus, examination of merit of the matter would stand on different footing which would well Page 24 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined defined by several decisions of Hon'ble Apex Court. Few would referred herein below.

10.1 It is by now well settled legal position of law that in a case where any positive exercise of discretion by Court below then, appellate court should ordinarily would not interfere with such discretion exercised by Court unless its arbitrary, perverse and or contrary to settled legal position of law. 10.2 It would apt to refer and rely upon following decisions of Hon'ble Supeme Court of India which has clarified such aspect of the matter.

10.3 In a case of N Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123, it has been held as under:-

"[9] It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the Page 25 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court."

10.4 Likewise, in a case of Sheo Raj Singh(D) Tr.Lrs.. vs Union Of India reported in (2023) 10 SCC 531 held thus:-

"33. Be that as it may, it is important to bear in mind that we are not hearing an application for condonation of delay but sitting in appeal over a discretionary order of the High Court granting the prayer for condonation of delay. In the case of the former, whether to condone or not would be the only question whereas in the latter, whether there has been proper exercise of discretion in favour of grant of the prayer for condonation would be the question. Law is fairly well- settled that "a court of appeal should not ordinarily interfere with the discretion exercised by the courts below". If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v. Tammanasa, 2003 10 SCC 390. which in turn relied on the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 2 SCC 593. where it has been held that "an appellate power interferes not when the order appealed is not right but only when it is clearly wrong".

41. Having bestowed serious consideration to the rival Page 26 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."

11. Finally, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court should refrain from interfering with the discretionary orders of the Appellate Court and there is limitation, thereby this court cannot substitute its own view and the view taken by court below unless palpably arbitrary, erroneous, perverse and passed contrary to settled legal position of law, which is not demonstrated here by defendants. [ See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) Page 27 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16) ]

12. Conclusion:

12.1 Thus, upshot of said discussion would lead to one conclusion that, there was gross negligence on the part of the defendants in filing the appeal be lately, approximately seven years and six months after the date of the judgment/decree passed by the trial court. No sufficient cause has been made out by defendant in the impugned application.

12.2 In view of the aforesaid facts and ratio of various decisions of Hon'ble Supreme Court so referred herein-above, I am of the view that there is no error, much less any serious error of law or a jurisdictional error of law committed by appellate court while rejecting the impugned application.

12.3 In view of the foregoing reasons, the order impugned passed by the Appellate Court in rejecting the delay condonation application is just and proper, and the writ Page 28 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025 NEUTRAL CITATION C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025 undefined petition deserves to be dismissed and the same is hereby dismissed. Rule discharged. No other as to costs.

(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 29 of 29 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 28 2025 Downloaded on : Mon Apr 28 23:13:49 IST 2025