Gujarat High Court
Harishbhai Buddharam Maheshwari vs Meghji Natha Maheshwari on 10 February, 2025
NEUTRAL CITATION
C/SCA/1587/2025 ORDER DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.SPECIAL CIVIL APPLICATION NO. 1587 of 2025
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HARISHBHAI BUDDHARAM MAHESHWARI
Versus
MEGHJI NATHA MAHESHWARI & ANR.
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Appearance:
MR DIPESH D SONI WITH MR.ALAY SHETH (9996) for the Petitioner(s) No.
1
MS NANDITA A SUROLLIA(12060) for the Petitioner(s) No. 1
MR. AKASH CHHAYA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10.02.2025
ORAL ORDER
1. The present application is filed under Article 227 of the Constitution of India, seeking the following reliefs.
"A. This Hon'ble Court may kindly be pleased to admit and allow this petition and or;
B. This Hon'ble Court be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned order dated 13.08.2024 passed by the Court of the Ld. Principal District Judge, Kutch at Bhuj in Civil Miscellaneous Application No. 08 of 2021 at Annexure - 'A-Colly';
C. Pending admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to stay the operation, implementation and execution of the impugned order dated 13.08.2024 passed by the Court of the Ld. Principal District Judge, Kutch at Bhuj in Civil Miscellaneous Application No. 08 of 2021 at Annexure - 'A-Colly';
D. This Hon'ble Court may be pleased to pass such other and further reliefs as may deemed just and proper in interest of justice.Page 1 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025
NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined
2. The parties will be referred to as per their original position before the Trial Court.
3. The short facts of the case appear to be as under:-
3.1 The petitioner happens to be the plaintiff of Special Civil Suit No.117 of 2008, filed before the Principal Senior Civil Judge, Bhuj at Kutch, against respondent No.1. The suit was filed seeking specific performance of an agreement to sell executed on 23.03.2007.
3.2 It appears that as the plaintiff had not turned up before the Trial Court to proceed with the suit after the retirement of his advocate, the Trial Court appears to have dismissed the suit on dated 21.02.2015 under Order IX, Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code, 1908").
3.3 It further appears that on the retirement of the learned advocate of the plaintiff, the Trial Court had issued notice to the plaintiff, which is claimed to have not been received by the plaintiff due to a change of his address. Nothing as such substantiated by the plaintiff in this regard.
3.4 The plaintiff came to know about such dismissal of the suit when he inquired with the learned advocate on 09.04.2018. So, he has preferred a restoration application Page 2 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined under Order IX Rule 9 of Code, 1908 on 24.04.2018. As there was a delay of 1127 days i.e., 3 years and 47 days in filing such a restoration application. The plaintiff had filed a separate delay application.
3.5 After hearing the parties, having not found sufficient cause, vide its order dated 12.02.2019, the Trial Court has rejected such delay application, thereby not condoning the delay of 1127 days in filing the restoration application.
3.6 The plaintiff has challenged the said order before the Appellate Court by filing an appeal, wherein also there was also a huge delay of 1 year, 9 months and 17 days in filing the appeal under Order 43 of Code, 1908. After hearing the parties, the Appellate Court has also not entertained such a delay application filed by the plaintiff and the same has been rejected via its impugned order dated 13.08.2024.
4. Being aggrieved and dissatisfied with the impugned judgment and order dated 13.08.2024, passed by the learned Principal District Judge, Kutch at Bhuj, in Civil Miscellaneous Application No.8 of 2021, the petitioner has preferred the present application.
SUBMISSION OF THE PETITIONER
5. Learned advocate Mr. Alay Sheth for learned advocate Page 3 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined Mr. D.D.Soni appearing for the petitioner would submit that the courts below ought to have condoned the delay in the interest of justice and that the plaintiff could have been given one opportunity to conduct his suit in accordance with law.
5.1 Learned advocate Mr. Alay Sheth would submit that when a sufficient cause is made out by the plaintiff, the delay was required to be condoned by the lower Appellate Court.
5.2 Learned advocate Mr. Alay Sheth would further submit that the mother of the plaintiff was ill and that the plaintiff was occupied due to such illness and therefore, he could not prefer the appeal in time, which is a sufficient cause for not approaching the lower Appellate Court within the stipulated time.
5.3 Learned advocate Mr. Alay Sheth would submit that with reasonable costs, the delay was required to be condoned by the lower Appellate Court, and having not done so resulted into miscarriage of justice.
5.4 Learned advocate Mr. Alay Sheth would submit that as on today, the plaintiff is ready to pay a reasonable costs, thereby condoning the delay thereby the lower Appellate Court may be requested to decide his appeal on merits. 5.5 Making the above submission, he requested this Court Page 4 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined to allow the present application.
5.6 No other and further submissions being made.
SUBMISSION OF RESPONDENT NO.2 - STATE
6. Per contra, learned Assistant Government Pleader, Mr. Akash Chhaya appearing for respondent No.2 -State would submit that as such the State is wrongly joined in the present proceeding, as in the aforesaid suit, the State was not joined as a defendant. So, he would request this court to pass an appropriate order in the interest of justice.
7. Heard learned advocates for the respective parties at length. No other further submissions are made.
ANALYSIS
8. At the outset, I would like to remind myself that the present application is filed under Article 227 of Constitution of India, and while deciding such an application, this court must take into consideration the decisions of the Hon'ble Supreme Court in the case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181.
9. Considering the prayer made in the present application Page 5 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined and the nature of the controversy involved in the present application, this court would like to confine itself to the impugned delay application made by the plaintiff before the lower Appellate Court while filing his appeal.
10. The facts, which are so stated hereinabove are eloquent, speak for themselves, and show the conduct of the plaintiff throughout the proceeding instituted by him, either before the Trial Court or at the lower Appellate Court.
11. The suit instituted by the plaintiff was dismissed for default on 21.02.2015, and the restoration application came to be filed after a delay of around 3 years and 47 days i.e., 1127 days. This court would not like to go into the reasons so assigned in such a delay application as not subject matter of the present application.
12. Be that as it may, even after the rejection of such delay application by the Trial Court, the plaintiff has not moved urgently to the lower Appellate Court by filing an appeal in time.
13. The plaintiff took around 1 year, 9 months and 17 days in filing the appeal against the rejection of his delay application by the Trial Court. This shows a complete callous and negligent attitude on the part of the plaintiff in pursuing Page 6 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined legal remedies.
14. The sole reason for the delay in filing the appeal before the lower Appellate Court was the illness of the plaintiff's mother. It is required to be noted here that except for bare words, nothing has been substantiated either before the lower Appellate Court or this court in this regard. Such causal statement made by the plaintiff in his delay application without any material particulars speaks volume about his conduct and approach while pursuing legal remedy.
15. When the plaintiff is pursuing his legal remedy, wherein he is not found to be vigilant, thereby his suit was dismissed for default for his non-appearance, thereafter, he took more than three years to file his restoration application. Even after rejection of such delay application by the Trial Court, he did not further act diligently by filing the appeal in time.
16. So, considering entire set of facts and conduct of the plaintiff, this court is of the view that the plaintiff has not acted diligently but there was complete callous and negligent approach on the part of plaintiff in filing the appeal with a huge delay.
17. It was expected from the plaintiff, once his delay application was rejected by the Trial Court, to have acted Page 7 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined promptly if he was genuinely interested and serious about prosecuting his case. However, having not done so, it is the plaintiff who can only be blamed, and no one else.
18. 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 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 Page 8 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined 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)
19. 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:
"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 Page 9 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined 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 Page 10 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined 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)
20. 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 Page 11 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined 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."
21. Lastly, it is also profitable to rely upon the decision of the Hon'ble Supreme Court of India in the case of case of Basawaraj and Another v. Special Land Acquisition Officer reported in 2013 (14) SCC 81 wherein it is held as under:-
"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified Page 12 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined 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)
22. Thus, the upshot of the aforesaid discussion, observations, and reasons, I am in complete agreement with the reasons so assigned by the lower Appellate Court while rejecting the impugned application filed by the plaintiff. CONCLUSION
23. After examining the impugned application, I am of the view that no sufficient cause is made out by the plaintiff in filing the appeal after a period of 1 year, 9 months and 17 days and having no sufficient cause made out, no error, much less any gross error or any jurisdictional error, was committed by the lower Appellate Court while rejecting the application.
24. Thus, considering ratio of Sameer Suresh Gupta TR PA Holder (supra), Garment Craft (supra), Rajneesh Kumar (supra), K.B. Lal (Krishna Bahadur Lal) (supra), Pathapati Subba Reddy (supra) and Basawaraj (supra) applied to facts of the present case, no interference required of this Court while exercising its Page 13 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025 NEUTRAL CITATION C/SCA/1587/2025 ORDER DATED: 10/02/2025 undefined power under Article 227 of the Constitution of India .
24.1 The present application lacks merit and is required to be dismissed. Hence, the same is hereby DISMISSED. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 14 of 14 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:15:54 IST 2025