Gujarat High Court
Aiyubbhai Ajitkhan Sipai vs Kanjibhai Dhanjibhai Ilariya on 25 August, 2025
NEUTRAL CITATION
C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6586 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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AIYUBBHAI AJITKHAN SIPAI & ORS.
Versus
KANJIBHAI DHANJIBHAI ILARIYA & ORS.
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Appearance:
MR AFTABHUSEN ANSARI(5320) for the Petitioner(s) No. 1,2,3,4,5,6
MR PARESH A. PATEL(5456) for the Respondent(s) No. 4,5,6
NOTICE SERVED for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/08/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. Paresh A. Patel waives service of notice of the Rule for respondent Nos.4 to 6. Though served, none appears for respondent Nos.1 to 3. With the consent of learned Page 1 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined advocates of respective parties, matter is take up for hearing.
2. Heard learned Ms. Helly Makwana appearing on behalf of learned Advocate Mr.Aftabhusen Ansari for the petitioners and learned Advocate Mr. Paresh A. Patel for the respondent Nos.4 to 6.
3. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"a) To admit and allow this writ Petition;
b) YOUR LORDSHIPS may kindly be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari to quash and set aside the Order dated 09.12.2024, passed by the Learned 5th Additional Civil Judge, Palanpur, rejecting Civil Miscellaneous Application No. 31/2023 for condonation of delay, in the interest of justice;
c) YOUR LORDSHIPS may kindly be pleased to direct the Learned 5th Additional Civil Judge, Palanpur to restore Regular Civil Suit No. 15/2019 and proceed with adjudication on merits.
d) YOUR LORDSHIPS may kindly be pleased to grant an interim relief, restraining the respondents from transferring, alienating, or making any permanent changes to the disputed land pending final disposal of this petition.
e) Be pleased to grant any other and further reliefs as this Hon'ble Court may deem fit in the interest of justice." Page 2 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025
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4. As far as possible, the parties will be referred to as per their original position before the Trial Court.
5. THE SHORT FACTS OF THE CASE APPEARS TO BE THAT:
5.1. The petitioners herein are the original plaintiffs whereas the respondents are the original defendants of the Regular Civil Suit No.15 of 2019, filed by the petitioners, came to be dismissed for non-prosecution on 25th November, 2021. The restoration application came to be filed on 1st July, 2023, wherein there was a delay of around one year, six months and five days in filing such restoration application under Order 9, Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.").
5.2. After hearing the parties, the Trial Court has not condoned such delay, thereby rejected the impugned application. Hence, the present application.
6. SUBMISSIONS OF PETITIONERS-PLAINTIFFS:
6.1. Learned Advocate Ms. Makwana would submit that the Trial Court has taken very hyper-technical approach, Page 3 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined thereby it has not condoned the delay in filing restoration application, which requires to be condoned by this Court.
6.2. Learned Advocate Ms. Makwana would further submit that as such there was no mala fide intention on the part of the petitioners not to file the restoration application within stipulated time, but the reasons set out in the delay application, they could not file restoration application in time. It is submitted that due to the COVID-19 situation and as such petitioner No.1, who is elder of family members of petitioners, was looking after the affairs of the civil suit was fallen ill and petitioner No.2 was working in ST Corporation, could not look after and get the updates of the same suit, which resulted into dismissal of the suit for default.
6.3. Learned Advocate Ms. Makwana would further submit that the suit was filed through a lawyer who abruptly withdrawn his appearance from the suit and the same was not within their knowledge. But, it is true that notice came to be issued by the Trial Court about such withdrawal of appearance by the Advocate concerned, Page 4 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined but time was too short to engage another lawyer and to appear and defend the suit and between, the suit got dismissed for default.
6.4. Learned Advocate Ms. Makwana would further submit that as such, prior to passing of the order of dismissal of the suit, the respondents herein have preferred an application below Exhibit 36 on 12th November, 2021, filed under Order 9, Rule 8 of the C.P.C., but such application was never served upon the petitioners and to that extent, there was a violation of the principle of natural justice which was unnoticed by the Trial Court. 6.5. Learned Advocate Ms. Makwana would further submit that as per the settled legal position of law while condoning the delay, a liberal approach requires to be adopted by the Trial Court and unless there is a gross negligence, mala fide, dilatory tactics and/or like act committed by applicants, in other cases, even by imposing conditions that to of costs, delay requires to be condoned to advance justice to the parties. 6.6. Making the above submission, learned Advocate Ms. Makwana would request this Court to allow the present Page 5 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined writ application.
7. SUBMISSIONS OF THE RESPONDENTS-
DEFENDANTS:
7.1. Learned Advocate Mr. Patel would submit that as such, there is no error, much less any gross error of law, committed by the Trial Court while not condoning the delay in filing restoration application. It is submitted that there is a gross negligence on the part of the plaintiffs not to appear in the suit, which resulted into dismissal of the suit for non-prosecution.
7.2. Learned Advocate Mr. Patel would submit that after withdrawal of appearance of lawyer of plaintiffs, a notice came to be served upon plaintiffs and thereafter, on two dates, they have chosen not to appear. Accordingly, the Trial Court has dismissed the suit, whereby no fault can be found with the Trial Court.
7.3. Learned Advocate Mr. Patel would submit that COVID-
19 period got over latest by June-2022 and as such, the present delay application with the restoration application came to be filed only in the month of June-
2023 itself shows that the plaintiffs are not vigilant Page 6 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined enough to file and prosecute their legal remedy available in law. It is submitted that considering the overall facts and circumstances of the case and conduct of the plaintiffs, no leniency should be shown to plaintiffs and thereby, this Court may not exercise its supervisory jurisdiction in favour of the petitioners. 7.4. Learned Advocate Mr. Patel would further submit that there are as much as six plaintiffs, thereby merely because plaintiff Nos.1 and/or 2 are either ill or engaged in service would be no ground to file a restoration application after this much period. It is submitted that there is no sufficient cause made out by the applicants- plaintiffs while filing the delay application in the restoration application.
7.5. So, making the above submissions, learned Advocate Mr. Patel would request this Court not to entertain the present writ application.
8. Heard learned Advocates appearing for the respective parties at length.
9. No other and further submissions are being made by the learned advocates.
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10. At the outset, this Court is required to consider the fact that whether the restoration application filed by the petitioners-plaintiffs after the period of limitation, whereby, they have been actually prevented by any sufficient cause or not?.
11. The facts which are narrated hereinabove are not in dispute. It is true that the learned Advocate who was engaged by the plaintiffs have been withdrawn in the midst of suit proceedings in COVID-19 period. It is also true that the Trial Court had issued notices upon the plaintiffs, which were served upon them after withdrawal of appearance by the Advocates. But, at the same time that such notice was issued below Exhibit 35, which was served upon the plaintiffs and thereafter, three dates were given in the suit proceedings i.e. 29th September, 2021, 12th October, 2021 and 29th October, 2021 and on such dates, the plaintiffs could not remain present. Such period was 2 nd phase of COVID-19 period. The explanation coming forth on the side of the plaintiffs would be that plaintiff No.1 who was looking after the affairs of the suit was ill and as such, plaintiff No.2 was engaged in the ST Corporation, thereby unable to attend Page 8 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined the suit proceedings after withdrawal of the appearance of the Advocate concerned.
12. These aforesaid facts which are stated by the plaintiffs in the delay application is remained uncontroverted by the opponents-defendants, inasmuch as no contrary evidence came on record from their side. Further, it appears that an application below Exhibit 36 came to be filed by original defendants under Order 9, Rule 8 of the C.P.C. in the suit, whereby requested the Trial Court to dismiss the suit for non-prosecution, which was never served upon the plaintiffs and to that extent, according to this Court, a principle of natural justice was violated.
13. The Trial Court, after taking note of such application and also taking note of the facts that on previous three dates, despite service of notice upon the plaintiffs, they were not appeared, dismissed the suit for default. The factum of illness of plaintiff No.1 and plaintiff No.2 having engaged himself in the job, thereby not present before the Trial Court to defend the suit proceedings is concerned, it constitutes a sufficient cause which, of course, prevented them not to appear and file the Page 9 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined restoration application well within the time. It is also not out of place to mention that happening of dismissal of the suit during the COVID-19 period. It was a time that everyone was first looking after the safety of oneself rather than focusing on the legal proceedings instituted by them. This Court cannot oblivious of such facts while examining the delay application.
14. It is now by well-settled legal position of law that while adjudicating the delay application, the Court is required to take a liberal approach and cause set out in the application is required to be considered liberally rather than taking a hyper technical approach. Unless, it has been shown on record that there is a mala fide intention, dilatory tactics, gross negligence or like act of the applicants, ordinarily, if there is no serious prejudice caused to the opponents, the court on suitable conditions requires to condone the delay.
15. It is apposite to refer to and rely upon the decision of the Honorable Supreme Court of India N Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123, it has been held as under:-
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NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined "[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 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."
(emphasis supplied) 15.1. Likewise, in a case of Collector, Land Acquisition, Anantnag V/s. MST Katiji reported in 1987 2 SCC 107, wherein it has been held thus :-
"1. Ordinarily a litigant does not stand to benefit by lodging an Page 11 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
(emphasis supplied)
16. Considering the totality of the aforesaid facts and Page 12 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined circumstances of the case and after appreciating the submissions so canvassed by learned Advocates appearing for the respective parties and so also after going through the averments made in the impugned delay application, I am fully satisfied that sufficient cause has been made out by the applicants in the delay application so filed in the restoration application.
17. This Court has already directed the petitioners to deposit sum of Rs.30,000/- as probable cost to bring the respondents here, which has been deposited by the petitioners. So, respondents would be compensated in terms of money while condoning delay. As respondents Nos. 4 to 6 only appeared before this Court, they are permitted to withdraw such amount of cost. The Registry shall pay/credit such amount in the account of respondent Nos. 4 to 6 only. At this stage, learned Advocate Mr. Patel would request this Court that the amount of Rs.30,000/- be credited only in the account of respondent No.5. The Registry shall do the needful and credit such amount of Rs.30,000/- with accrued interest, if any, thereon in the account of respondent No.5 on furnishing proper bank details of respondent No.5 by Page 13 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025 NEUTRAL CITATION C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025 undefined learned Advocate of the respondents. CONCLUSION
18. In view of the foregoing reasons, the impugned order dated 9th December, 2024, passed by the 5th Additional Civil Judge, Palanpur, in Civil Miscellaneous Application No. 31 of 2023, is hereby quashed and set aside. Accordingly, the impugned delay application being Civil Miscellaneous Application No. 31 of 2023, is hereby allowed. The Trial Court shall now decide the restoration application on its own merits and to decide it in accordance with law.
19. Consequently, the present writ application deserves to be allowed, which is hereby allowed. Rule made absolute to the aforesaid extent.
(MAULIK J.SHELAT,J) Nilesh Page 14 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:31:28 IST 2025