Gujarat High Court
Dhulabhai Bapudas And Narmadaben ... vs Keshavlal Mohanlal Lhs Of Late ... on 30 April, 2025
NEUTRAL CITATION
C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3698 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
yes
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DHULABHAI BAPUDAS AND NARMADABEN DHULABHAI LHS LATE VIMLABEN D/O
DHULABHAI W/OBECHARDAS THROUGH LHS & ORS.
Versus
KESHAVLAL MOHANLAL LHS OF LATE CHUNIBHAI KESHAVLAL & ORS.
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.2,2.3,2.4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 30/04/2025
ORAL JUDGMENT
1. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs :-
"a. This Honourable Court be pleased to allow this petition.
b. This Honourable Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the order below Exhibit No. 01 dated 24.10.2024, passed by the 2 nd Additional Civil Judge and Judicial Magistrate First Class At Ahmedabad in Civil Misc. Application No. 109 of 2023, rejecting the Delay Condonation Application in Regular Civil Suit No. 485 of 1996 produced at Annexure A and declare the same to be null and void;
c. Pending admission hearing and final disposal of the petition this Honourable Court be pleased to restrain the Respondent, there Hiers, Page 1 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined their Agents, etc. from not dealing with the property in any manner whatsoever in the interest of Justice.
d. This Honourable Court be pleased to grant ad-interim relief in terms of Para - C. e. To pass such other and further orders as are necessary in the interest of justice."
Short facts of the case
2. The petitioners herein are legal heirs of original plaintiffs of Regular Civil Suit No. 485 of 1996 instituted against the respondents herein. The suit was filed seeking declaration and injunction.
2.1 It appears that during the pendency of the suit, plaintiff No.1 died on 25.12.2006 whereas plaintiff No.2 died on 24.07.1999, as no effective steps have been taken by the legal heirs of deceased plaintiffs to bring them on record, it appears that on an application being filed by defendant, the trial Court vide its order dated 07.05.2016 appears to have abated the suit, thereby it was disposed of accordingly.
2.2 The petitioners herein are legal heirs of deceased plaintiffs have filed impugned application on 03.05.2023 being Civil Misc. Application No. 109 of 2023 seeking condonation of delay in bringing legal heirs of deceased plaintiffs in setting aside abatement of suit. There appears Page 2 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined delay of 6 years, 4 months and 12 days in filing necessary application under Order 22 Rule 9 of CPC.
2.3 The respondents herein have objected the impugned application by filing their reply below Exh. 10. After hearing the parties, the trial Court vide its order dated 24.10.2024 has rejected the impugned application, which is challenged by way of the present writ application.
Submissions of Petitioners 3.0 Learned advocate Mr. Harshadray A. Dave for the petitioners would submit that the trial Court has without appreciating the facts on record and taking hyper technical approach, has rejected the impugned delay application. He would further submit that the petitioners were not aware about the abatement of the suit proceedings instituted by their predecessors in the year 1996 which was reason for delay in filing an application to bring legal heirs of original plaintiffs, which ought to have been condoned by the trial Court.
3.1 Learned advocate Mr. Dave would further submit that the Advocate who was engaged by the original petitioners had not intimated about the status of the suit being abated Page 3 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined and as such petitioners are not very much literate, could not file application in time. He would further submit that just before filing an impugned application, they have contacted their Lawyer engaged by the original plaintiffs then after, they came to know about the order dated 07.05.2016 passed by trial Court, whereby, suit was abated / disposed of.
3.2 Learned advocate Mr. Dave would further submit that as per settled legal position of law, the trial Court ought to have condoned the delay by taking liberal approach in favour of the petitioners, having no negligence on their part and ought to have condoned the delay as no prejudice would cause.
3.3 Making the above submissions, learned advocate Mr. Dave would request this Court to allow the present writ application.
4. No other and further submissions have been made by the learned advocate for the petitioners.
5. Heard learned advocate Mr. Harshadray A Dave for the petitioners at length.
ANALYSIS Page 4 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined
6. The short controversy involved in the present matter is about the non-condoning the delay by the trial Court, thereby, the impugned delay application filed by the petitioners seeking condonation of 6 years 4 months and 12 days in filing an application to bring the legal heirs of original plaintiffs as well as to set aside abatement of the suit filed by the plaintiffs was rejected.
6.1 It is not in dispute that plaintiff No.1 died on 25.12.2006 and plaintiff No. 2 died on 24.07.1999, and the legal heirs of original plaintiffs were not brought on record within stipulated time which ultimately resulted into abatement of the suit by the trial Court vide its order dated 07.05.2016.
6.2 It appears that prior to filing of the impugned delay application / setting aside abatement/ bringing legal heirs application, petitioners had filed revision application before the Revenue Authority i.e. Collector, Ahmedabad, whereby, they have challenged the order dated 29.11.2008 passed by the Deputy Collector, Veeramgam in case RTS/Appeal/ Case No. 43 of 2006. Such revision application was filed under Section 108 (b) of The Gujarat Land Revenue Code, 1879. Such revision application appears to have submitted before Page 5 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined the Revisional Revenue Authority on 20.02.2021, copy of which is submitted with the present writ application (page-
32).
6.3 It further appears that in Para-12 of such revision application so filed by the petitioners, they have given reference about the suit in question. Nonetheless, in Para-10 & 11 of the impugned delay application so filed before the trial Court, the petitioners have made false and incorrect statements that they were not aware about the abatement of the suit at the relevant time which came to their notice just before filing the impugned delay application i.e. on 03.05.2023. Such statement made in Para-10 & 11 of the impugned delay application is completely false and incorrect, as bare reading of Para-12 of the said Revision memo so filed by the petitioners before the Revenue Authority would clearly suggests that in fact the petitioners were in knowledge of filing of the suit by their predecessors, thereby, they could have easily verified its status in the year 2021 itself when they have preferred Revision challenging the order dated 29.11.2008 passed by the Deputy Collector, Veeramgam, which is undisputedly after the death of both the plaintiffs.
6.4 The trial Court has correctly observed in the impugned Page 6 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined order that the petitioners could have easily checked the status of the suit proceedings from on-line case status now easily available on website. At this stage, it is apposite to note that impugned application, Revision Application filed before revenue authority as well as present writ application were filed through Power of Attorney holder and its not the case of such attorney that he is unlettered, not known to procedure of law. Further, all these proceeding were conducted through lawyer engaged by petitioners who could have easily assisted petitioners in all respect.
6.5 Thus, in view of aforesaid facts, petitioners made false and incorrect statement in the delay application about factum of the knowledge of abatement of suit. It is well settled legal position of law that when party is seeking any equitable relief from the Court, specially filing delay application with incorrect fact and or false statement by suppressing it or mislead the Court, such party would not be entitled to get equitable relief and or discretionary relief even though any sufficient cause is made out, the Court should not entertain such delay application.
6.6 This Court during the course of hearing of the present writ application has drawn the attention to the learned advocate Mr. Harshadray Dave for the petitioners about the Page 7 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined aforesaid suppression / incorrect statements made by the petitioners in the impugned delay application i.e. factum of gathering knowledge of abatement of the suit proceedings by petitioners.
6.7 Apropos to above, learned advocate Mr. Dave for the petitioners would responded that as such in Para-12 of the revisional application, the petitioners have only disclosed about filing of the suit against the respondents but what is stated in Para-10 & 11 of the impugned delay application as regards to gather knowledge of abatement of suit proceedings by the petitioners just to prior to filing of the impugned delay application, and as such there is no suppression/ incorrect statement made by the petitioners in the delay application.
6.8 I do not accept such response/reply for the simple reason that when the petitioners have consciously recorded the factum of civil suit by disclosing it in their revenue proceedings / revisional application, it would not be believable that petitioners were not aware about its status i.e. abatement of suit in year 2021 itself.
7. It would be profitable to rely upon the observations made by the Honourable Supreme Court of India in case of Page 8 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined Pundlik Jalam Patil vs. Executive Engineer, Jalgaon Medium Project, (2018) 7 SCC 448, reads as under :-
"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. 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 Page 9 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined 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) 1 SCC 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 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) 7.1 Having observed hereinabove that the petitioners have not disclosed true and correct facts but made a false/incorrect statement about the factum of knowledge of Page 10 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined status of the suit gathered just prior to filing impugned application, following the ratio of Pundlik Jalam Patil (supra), the petitioners are not entitled to get any equitable and discretionary relief from the Court. So, in this facts and circumstances, delay application would requires to be rejected only on this ground alone.
7.2 Further, the entire blame has been put on the shoulder of the Advocate, who alleged to have been not disclosed the factum of abatement of suit to the petitioners. There is no material particulars produced on record to substantiate such statement, except to observe that there is bald assertion on the part of the petitioners to make such statement without any supporting evidence to show that at any relevant point of time, the petitioners had contacted the Lawyer after the death of respective plaintiffs which has taken place in the year 1999 and 2006 respectively.
7.3 Moreover, the revenue proceedings (revisional application) appears to have presented through their Lawyer engaged by the petitioners, then it could expected that petitioners must have appraised about the status of the suit proceedings but nothing has been disclosed by petitioners. It appears that having lost in revenue proceeding as a last recourse, petitioners had file impugned application as order Page 11 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined under challenged in Revision before Collector concern was of year 2008. In any case, the petitioners can not blame the advocate when they have remained silent for years together by not filing an appropriate application before the trial Court.
7.4 As such suit was abated in the year 1999/2006 itself when respective plaintiffs were died but it appears that a formal order of abatement of suit was passed in the year 2016 on an application, might have been preferred by the defendant. If the Court takes into account abatement of suit takes place in the year 2006, then also, there would be a delay of almost 17 years in preferring an application to bring legal heirs of plaintiffs and so also for setting aside of abatement of suit having filed it in year 2023.
8. It is apt to refer and rely upon 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 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 Page 12 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined 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) 8.1 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 Page 13 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined 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 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.Page 14 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025
NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined 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 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) 8.2 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 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:Page 15 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025
NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined
(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;
(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) 8.3 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:-
Page 16 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined "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 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) 8.4 After going through entire set of events and facts germane from the impugned application and record would lead to suggest that there is gross negligence on the part of the petitioners in not filing an application for setting aside abatement of suit and to file necessary application to bring legal heirs of plaintiffs within reasonable time after the sad demise of plaintiffs, which was filed subsequent to losing their battle in the revenue proceedings filed by them.
8.5 As such, in view of aforesaid facts, reasons and position of law enunciated in above decisions, none of submissions so made by learned advocate Mr. Dave impressed this Court to interfere with order impugned in this present application Page 17 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined hence, they are not accepted.
9. Before parting with judgement, I would like observe that this Court while exercising its power under Article 227 of the Constitution of India having limited scope of interfer- ence in the order passed by Courts below which is succinctly discussed in following two decisions of Honourable Supreme Court of India. First one in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judg- ment reads as under:-
"[6] In our view, the impugned order is liable to be set aside be- cause while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's ju- risdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were consid- ered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not af-
fect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for cor- recting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction Page 18 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined where there exists none, or (ii) in excess of its jurisdiction - by over- stepping or crossing the limits of jurisdiction, or (iii) acting in fla- grant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure speci- fied, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a juris- diction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exer- cised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdic- tion, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory juris- diction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pen- dency of any suit or proceedings in a subordinate Court and the er- ror though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or super- visory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court Page 19 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined may feel inclined to intervene where the error is such, as, if not cor- rected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of jus- tice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdic- tion will not covert itself into a Court of Appeal and indulge in re-ap- preciation or evaluation of evidence or correct errors in drawing in- ferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory juris- diction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliter- ated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 :
(2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para
49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in ex-Page 20 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025
NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined ercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also op- erate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the prin- ciples laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the prin- ciples in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can in- terfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and mani- fest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because an- other view than the one taken by the tribunals or Courts subordi- nate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitu- tional amendment is also very doubtful.
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(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of su- perintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the en- tire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpol- luted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high de- gree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be coun- terproductive and will divest this extraordinary power of its strength and vitality."
(emphasis supplied) Page 22 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined 9.1 The second decision in a case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel.Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sus- tained for several reasons, but primarily for deviation from the lim- ited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory juris- diction does not act as a Court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own deci- sion on facts and conclusion, for that of the inferior Court or tri- bunal.[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exer-
cised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental princi- ples of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101- 102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is exam- ined and explained in a number of decisions of this Court. The ex- ercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their au- thority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any un- limited prerogative to correct all kinds of hardship or wrong deci-
Page 23 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined sions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave in- justice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the find- ings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable per- son can possibly come to such a conclusion, which the Court or tri- bunal has come to."
(emphasis supplied)
10. So, in view of the aforesaid facts and circumstances of the case and position of law stands as on date, I am of the view that there is no gross error and or any jurisdictional error committed by the trial Court while rejecting the impugned delay application. No interference of this Court requires while exercising its power under Article 227 of Constitution of India.
Conclusion:
11. The upshot of above discussion would lead to one conclusion that, there was clear suppression and incorrect statement of fact in relation to factum of knowledge of petitioners qua abatement of suit and so also gross negligence on the part of the petitioners in filing the impugned delay application be lately, approximately seven Page 24 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025 NEUTRAL CITATION C/SCA/3698/2025 JUDGMENT DATED: 30/04/2025 undefined years after the date of the order of abatement passed by the trial Court. No sufficient cause has been made out by petitioners in the impugned application thereby, trial Court has correctly not condone the delay in filing application for setting aside abatement/bringing legal heirs of plaintiffs on record of suit.
12. 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 trial Court while rejecting the impugned application.
13. Thus, due to foregoing reasons, the order impugned passed by the trial Court whereby rejecting the impugned delay condonation application is just and proper, consequently the writ application deserves to be dismissed and the same is hereby dismissed. No other as to costs.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 25 of 25 Uploaded by SALIM(HC01108) on Fri May 02 2025 Downloaded on : Sat May 03 15:36:53 IST 2025