Gujarat High Court
Legal Heirs And Representative Gohil ... vs Chavda Jitendrasinh Kanaksinh on 4 February, 2025
NEUTRAL CITATION
C/SCA/1297/2025 ORDER DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1297 of 2025
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LEGAL HEIRS AND REPRESENTATIVE GOHIL FATEHSINH BHUPATSINH
& ORS.
Versus
CHAVDA JITENDRASINH KANAKSINH & ORS.
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Appearance:
MR. JARJEESKHAN(7235) for the Petitioner(s) No. 1,1.1,1.2,1.3
D C BHATT(7618) for the Respondent(s) No. 1,2,3,4,5,5.1,5.2
MR D V KANSARA(7498) for the Respondent(s) No. 1,2,3,4,5,5.1,5.2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/02/2025
ORAL ORDER
1. Heard learned advocate Jarjeeskhan for the petitioners and learned advocate Mr. D.V. Kansara for the respondents.
Facts of the case.
2. The petitioners and the respondents are real brothers and sisters (siblings). Respondent Nos. 1 to 3 had filed Regular Civil Suit No. 112 of 2017 against the present petitioners as well as respondent Nos. 4 & 5 seeking partition and possession of the suit property.
2.1 After hearing the parties, the trial Court vide its judgement and decree dated 01.01.2019 has partly allowed Page 1 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined the suit in favour of the plaintiffs, thereby 1/4 share has been given to respondent No.1 to 3 - original plaintiffs.
2.2 After passing of the judgment and decree by the trial Court, the petitioners applied for its certified copy of such judgement and decree on 14.02.2019 which was received on 18.07.2019 and thereafter, the petitioners went to the Lawyer for filing an appeal. The petitioners were under bona- fide impression that the appeal was filed. So, they have not chosen to contact the Lawyer at the relevant point of time.
2.3 When the plaintiffs came at the suit property and asked for their share, at that point of time, the petitioners realized that their appeal has not been filed by the advocate concerned. So, they immediately contacted the other Lawyer and filed the appeal under Order 41 of CPC before the District Court, wherein there was delay of 4 years, 6 months and 20 days in filing such appeal. So, the impugned delay application came to be filed on 23.06.2023. The original plaintiffs have objected such delay by filing their oral objections. After hearing the parties, the District Court had rejected the impugned delay application, thereby not condoned the delay.
2.4 Being aggrieved and dissatisfied with the impugned
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NEUTRAL CITATION
C/SCA/1297/2025 ORDER DATED: 04/02/2025
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judgement and order dated 10.10.2023 passed by the 3 rd Additional District & Sessions Judge, Chhota Udaipur in Civil Misc. Application No. 11 of 2023 in Regular Civil Suit No. 112 of 2017, the petitioners- original defendant No.1 have preferred the present petition.
Submission of the learned advocate for the petitioners.
3. Learned advocate Mr. Jarjeeskhan for the petitioners would submit that there is no negligence on the part of the petitioners in pursuing their right to file an appeal, inasmuch as on receiving the certified copy of the judgment and decree of the trial Court, they have given the certified copy of the impugned judgment and decree to the learned advocate who was engaged for filing appeal.
3.1 Learned advocate for the petitioners further submit that when the petitioners have fully relied upon the word of learned advocate about filing of the appeal, there was no reason for the petitioners to doubt and to further inquire in the matter.
3.2 Learned advocate for the petitioners would further submit that when the original plaintiffs came on the suit property and asked for their share as per the impugned Page 3 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined judgment and decree passed by the trial Court, at that relevant point of time, they learnt about the fact that no appeal was filed by the Lawyer. So, he would submit in the light of the aforesaid facts and circumstances of the case, the petitioners could not preferred an appeal within time and there is sufficient cause made out by the petitioners in their impugned delay application which ought to have been condoned by the District Court, in the interest of justice.
3.3 Lastly, he would submit that with reasonable costs also, this Court may consider the request made by the petitioners, thereby the delay in filing the appeal may be condoned and the petitioners may be allowed to pursue their rights to institute the appeal, thereby they can never get chance to challenge the impugned judgment and decree passed by the trial Court. He would request that the present petition may be allowed in the interest of justice.
3.4 Making the above submissions, he would request this Court to allow the present petition. No other and further submissions have been made by the learned advocates for the petitioners.
Submission of the learned advocate for the respondents.
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4. Per contra, learned advocate Mr. D.V. Kansara for the respondents - including original plaintiffs would submit that there is no sufficient cause made out by the petitioners in pursuing their remedy to prefer an appeal and thereby no error much less any gross error committed by the District Court while rejecting the impugned delay application.
4.1 He would further submit that there was a huge delay of 4 years, 6 months and 20 days in filing the appeal and throughout such period, the petitioners were indolent and never bother to inquire the status of their appeal from their so called Lawyer engaged for filing the appeal.
4.2 He would further submit that it is the duty of the petitioners to inquire and check the status of the matter especially when the suit has been decreed against the petitioners, who are fully aware about the consequence of the decree passed by the trial Court. No burden can be put on head of the advocate especially nothing comes out from the record that petitioners have issued any notice to such lawyer for his alleged professional misconduct.
4.3 He would further submit that considering the entire set of facts and circumstances as well as the callous approach on the part of the petitioners, thereby not even bothered to Page 5 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined inquire about the actual filing of the appeal and are to get such details of filing appeal from their Lawyer, which is spelt out from plain reading of the impugned application, this Court may not disturb the impugned order passed by the District Court. As, no sufficient cause is made out.
4.4. Making the above submissions, he would request this Court to dismiss the present petition. No other and further submissions have been made by the learned advocates for the respondents.
ANALYSIS
5. At the outset, it is required to be noted that after passing the impugned judgement and decree by the trial Court, the petitioners having received its certified copy and given to the Lawyer as stated in the application, no further steps have been taken by the petitioners in regard to the actual filing of the appeal by the Lawyer or not. No inquiry have been undertaken by the petitioners to either get number of appeal or status of the appeal after its filing.
5.1 It is coming to the statement made in the application that the petitioners were under impression that the appeal is already filed and so, thereafter never bothered to ask for appeal. This itself shows the casual, negligent and callous Page 6 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined approach on the part of the litigant, who is pursuing his legal remedy in the property matter.
5.2 Further, it is also required to be noted here that the entire blame thrown on the head of the Lawyer, nothing further has come out from reading of the delay application and any separate document placed it on record by the petitioners to show that any legal action has been initiated against the concerned Lawyer by the petitioners for not filing the appeal in time. Prima-facie, when the litigant is blaming the professional misconduct and or negligence of a Lawyer about none filing the proceedings which is so requested by the litigant/client, a normal reaction of such litigant/ client would be to at least write something to such profession/Lawyer, thereby the Court can examine genuinity of reasons. This could have been so made out in the impugned delay application seeking condonation of huge delay of more than 4 years 6 months in the present case which is apparently missing.
5.3 Thus, in absence of any such material placed on record before the District Court while submitting the delay application and after plain reading of delay application, even this Court is also of the view that there is gross negligence on the part of the petitioners in pursuing his legal remedy, Page 7 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined having not bothered to even inquire about the filing of the appeal or check status from the Lawyer. The bare word of the petitioners put entire blame upon the head of lawyer is bereft of any material particulars.
6. At this juncture, this Court is required to consider that the present petition is filed under Article 227 of the Constitution of India wherein scope and power of this Court is clearly defined by the Hon'ble Supreme Court of India in the case of Sameer Suresh Gupta TRPA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein the law has been summarized thereby the scope and the power of the High Court while exercising its power under Article 227 of the Constitution of India has been defined. The relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered 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 affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
Page 8 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined (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 correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, 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 jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised 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 jurisdiction, 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.
Page 9 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined (7) The power to issue a writ of certiorari and the supervisory
jurisdiction 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 pendency of any suit or proceedings in a subordinate Court and the error 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 supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re- appreciation or evaluation of evidence or correct errors in drawing inferences 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 jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated 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.
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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 exercise 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 operate 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 principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles 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 interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
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(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 manifest 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 another view than the one taken by the tribunals or Courts subordinate 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 constitutional amendment is also very doubtful.
(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 is power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court his jurisdiction of superintendence 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 Page 12 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire 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 unpolluted 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 degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
6.1 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 v.
Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court Page 13 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined 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 decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles 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 examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority 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 unlimited prerogative to correct all kinds of hardship or wrong decisions 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 injustice 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 Page 14 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined on the face of the record. The High Court can set aside or ignore the findings 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 person can possibly come to such a conclusion, which the Court or tribunal has come to."
Emphasized supplied.
7. At this stage, it is apt to rely upon the decision of Honourable Supreme Court of India in a case of Rajneesh Kumar & Anr V/S 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 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 Page 15 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined 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. It is apposite to refer to and rely upon a recent 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 aspect 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:Page 16 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025
NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined "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.
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.
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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. Last but not least, 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 V/S 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:
(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 Page 18 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025 NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined 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."
10. Lastly, it is also profitable to rely upon the decision of the Hon'ble Supeme Court of India in the 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 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."Page 19 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025
NEUTRAL CITATION C/SCA/1297/2025 ORDER DATED: 04/02/2025 undefined (Emphasis supplied)
11. Thus, upshot of the aforesaid discussions and the ratio laid down by the Hon'ble Apex Court in the case of the aforesaid decisions, I am of the view that there is no gross error and or any jurisdictional error committed by the District Court while rejecting the delay application thereby not condoned the delay of 4 years and 6 months and 20 days in filing the appeal.
12. In view of the aforesaid observations, discussions and reasons, the present petition lacks merit requires to be dismissed. Thus, no interference is required by this Court while exercising its power under Article 227 of the Constitution of India. The petition is dismissed, albeit, no order as to costs.
(MAULIK J.SHELAT,J) SALIM/ Page 20 of 20 Uploaded by SALIM(HC01108) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:44:10 IST 2025