Gujarat High Court
Sabarmati Ashram Gaushala Trust vs Decd. Bakorbhai Kabhai Tadvi on 29 July, 2025
NEUTRAL CITATION
C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19743 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
✓
==========================================================
SABARMATI ASHRAM GAUSHALA TRUST
Versus
DECD. BAKORBHAI KABHAI TADVI & ORS.
==========================================================
Appearance:
MR JIGAR M PATEL(3841) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 1.3
NOTICE SERVED for the Respondent(s) No. 1.1,1.2,1.4,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 29/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Jigar M. Patel for the petitioner.
Though served, none appears for the respondents.
2. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"A) This petition may kindly be admitted;
B) This Hon'ble Court may be pleased to issue a writ of, or in the Page 1 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined nature of, certiorari or any other appropriate writ, order or direction quashing and setting aside order dated 29-6-2017 passed by the Court of 2nd Additional District Judge, Kheda, Nadiad in Civil Miscellaneous Application No.10 of 2012 -Annexure "A" and be further pleased to allow the aforesaid Civil Miscellaneous Application No.10 of 2012 by condoning the delay caused in filing Regular Civil Appeal filed by the petitioner against order dated 2-09-1996 passed by the Court of Civil Judge (Junior Division), Matar in Civil Suit No.88 of 1994 and be further pleased to direct Court of 2nd Additional District Judge, Kheda, Nadiad to decide the main Appeal on merits; C) This Hon'ble Court may be pleased to issue a writ of, or in the nature of, certiorari or any other appropriate writ, order or direction quashing and setting aside order dated 29-6-2017 passed by the Court of 2nd Additional District Judge, Kheda, Nadiad below an application-
Exhibit 39 in Civil Miscellaneous Application No.10 of 2012 - Annexure "H" and be further pleased to allow the said application- Exhibit 39 in terms of prayers made in paragraph nos.6(a) to 6(b) of the aforesaid application-Exhibit 39.
D) Such other(s) and further relief(s) which this Hon'ble Court may deem fit to be granted in the interest of justice;"
3. The parties will be referred to as per their original positions before the Trial Court.
4. The short facts of the case appears to be that:
5. The petitioner herein is the original plaintiff who instituted Civil Suit No. 88 of 1994 before the Court of Civil Judge (Junior Division), Matar against the respondents herein. The suit is filed seeking eviction of the respondents from the suit property and to get back the possession of the suit property Page 2 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined from the defendants. The reasons best known to the plaintiff, neither the plaintiff nor its advocate remained present before the Trial Court as recorded in the order dated 2nd September, 1996 of the Trial Court that the defendant No.1 died on 24th February, 1995, against whom the suit came to be filed and it got abated as no effective steps were taken by the plaintiff to bring his legal heirs on record. It is further recorded in the said order that no reliefs have been prayed against defendants Nos. 2 to 5. Thus, the Trial Court has disposed of the suit being abated vide its order dated 2nd September, 1996.
6. The plaintiff appears to have preferred an appeal before the District Court challenging the aforesaid order, but such appeal came to be filed only in December-2011, wherein there was a huge delay of 16 years in filing such appeal. So, the plaintiff preferred an impugned delay application being Civil Misc. Application No. 10 of 2012, contending inter alia that due to non-communication of disposal of the suit by its advocate, such delay was occurred in filing the appeal. It is also stated that the person who was looking after the affairs of the plaintiff-Trust suddenly fallen sick and later on died. It is so mentioned that when other suits filed by the plaintiff against other respective defendants of similar nature came Page 3 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined for hearing, at that point of time, it came to its notice on 28th December, 2011 that the aforesaid suit got abated.
7. After hearing the parties, the Appellate Court has rejected the impugned delay application against which the present writ application is filed.
8. SUBMISSIONS OF THE PETITIONER - PLAINTIFF:
8.1. Learned Advocate Mr. Patel would submit that the plaintiff is the Charitable Trust registered under the Public Trusts Act and its affairs are look after by several persons but the person who was looking after the affairs of the suit died and as such learned advocate engaged by the plaintiff had not communicated about disposal of the suit being abated in time, which caused the delay in filing the appeal which ought to have been condoned by the Appellate Court.
8.2. Learned Advocate Mr. Patel would further submit that while adjudicating delay application, a liberal approach requires to be taken by the Appellate Court, thereby, it can advance justice between the parties.
8.3. Learned Advocate Mr. Patel would further submit that there was no malafide intention and/or any negligence on the part of the plaintiff while pursuing its legal remedy but due to the reasons/cause set out in the impugned application, the appeal Page 4 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined could not be filed within the stipulated time.
8.4. Learned Advocate Mr. Patel would further submit that with reasonable costs imposed upon plaintiff, the delay could have been condoned by the Appellate Court, thereby the appeal could have been decided on its merits and as such, it was against disposal of the suit being abated, thereby such technical order could have been cured by the Appellate Court by granting one opportunity in favour of the plaintiff, thereby, the suit could have been decided on its merits.
8.5. Learned Advocate Mr. Patel would further submit that as per the settled legal position of law, the length of delay could not be material but the cause which has been espoused in the delay application needs to be considered by the Appellate Court while adjudicating such delay application. It is submitted that having not appreciated such facts which are stated in the delay application, which constituted sufficient cause, a grave error was committed by the Appellate Court while rejecting the delay application.
8.6. So, making the above submissions, learned Advocate Mr. Patel would request this Court to entertain the present writ application.
8.7. No other and further submissions are made.Page 5 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025
NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined POINT FOR DETERMINATION
9. The short question falls for consideration of this Court, as to whether in the facts and circumstances of the present case, is there any gross error of law and/or any jurisdictional error committed by the Appellate Court while rejecting Civil Miscellaneous Application No. 10 of 2012 filed by the petitioner-plaintiff?
ANALYSIS:
10. The facts which are narrated hereinabove are not in dispute.
The suit which was filed in the year 1994 was disposed of as abated in absence of plaintiff and its lawyer and as such defendant no.1 died but no effective steps taken to bring his legal heirs on record. So, trial Court vide its order dated 2nd September, 1996 disposed of the suit. For quite long time, no effective steps were taken by the plaintiff so far as setting aside such abetment and getting the suit restored back on its file, which can be seen from the record itself.
11. The plaintiff tried to explain the huge inordinate delay of 16 years in filing the appeal on two premises: firstly, that the advocate engaged by the plaintiff had not communicated about the aforesaid order passed by the Trial Court and secondly, the person who was looking after the affairs of the plaintiff-Trust died. None of the aforesaid explanations would Page 6 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined justified such huge inordinate delay on the part of the plaintiff as there was a long delay in filing the appeal requires to be explained properly and satisfactorily. It is true that the length of delay is not material, but the cause which prevented the applicant in approaching the Court requires to be seen, needs to constitute sufficient cause.
12. The Appellate Court has considered this aspect in detail by clearly observing that no effective steps were taken by the plaintiff between 2nd September, 1996, till 28th December, 2011. It further noticed that the person who was looking after the affairs of the plaintiff i.e. Kantibhai A. Jani died in the year 2001 and thereafter also, the plaintiff could have taken effective steps to check the status of the suit which appears to have not been done.
13. It further appears from the plain reading of the delay application and so also, after going through the impugned order, due to gross negligence on the part of the plaintiff, at the first occasion, the suit got abated as having not brought on record the legal heirs of defendant No. 1 against whom the prayers were made in the suit. Thereafter also, after about 16 years, one fine day, the plaintiff checked the status of suit in question and having realized that it was abated in the year 1996, filed the appeal before the District Court in Page 7 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined the year 2012.
14. It is interesting to note that in para-2 of the impugned delay application, it is clearly stated that in past, when the plaintiff inquired about the update of suit from its lawyer, it was replied by the lawyer that on verifying the next date, it would inform the plaintiff. If such a statement is taken on its face value, the plaintiff took almost 16 years to get it check such status from the lawyer, if in fact, the lawyer did not respond in time. The entire burden appears to have been shifted on the shoulder of the lawyer, which would be common ground taken by every litigant wherever there is a huge delay in filing any proceedings in court of law.
15. So, both these grounds which are narrated by the plaintiff are nothing but an excuse on the part of the plaintiff not to file appeal within stipulated time.
16. As such, the issue germane in the present writ application is already answered in so many words by the Honourable Supreme Court of India in its various decisions. I would like to rely upon some of it, as follows:
16.1. It would apt to first rely upon the recent past decision of Honourable Supreme Court of India delivered on 08-01-2025 in a case of H. Guruswamy & Ors. V/s. A. Krishnaiah Since Deceased By Lrs. reported in Civil Appeal No. 317 of 2025 Page 8 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined reported as 2025 INSC 53, wherein held as under:
"[13] We are at our wits end to understand why the High Court overlooked all the aforesaid aspects. What was the good reason for the High Court to ignore all this? Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as "liberal approach", "Justice oriented approach", "substantial justice" should not be employed to frustrate or jettison the substantial law of limitation.
[14] We are constrained to observe that the High Court has exhibited complete absence of judicial conscience and restraints, which a judge is expected to maintain while adjudicating a lis between the parties.
[15] The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.
[16] The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may Page 9 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined bring into aid the merits of the matter for the purpose of condoning the delay.
[17] We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time."
(emphasis supplied) 16.2. In the 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 Page 10 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined 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) 16.3. It is also apposite to refer and rely upon the decision 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 Page 11 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined 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.
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 Page 12 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined 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) 16.4. 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 held thus:-
"[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 13 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025
NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 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) Page 14 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined 16.5. 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 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)
17. Thus, in view of the aforesaid facts and circumstances of the case and the position of law as it stands as on date, I do not find any merit in the writ application, which requires to be rejected.
18. At this stage, learned advocate Mr. Patel would request this Court that the plaintiff may be allowed to file a fresh suit as Page 15 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025 NEUTRAL CITATION C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025 undefined the suit in question abated before framing of the issues, thereby, as per Order 9, Rule 4 of the CPC, fresh suit can be filed for the same cause of action. This Court would not opine anything about the same, but if permissible in law, the plaintiff may file appropriate suit with appropriate prayers against the legal heirs of the deceased-defendant no.1. The Civil Court shall have to decide it in accordance with law. CONCLUSION
19. In view of the aforesaid, the impugned order is neither erroneous nor perverse nor arbitrary and not passed contrary to any settled principle of law, thereby, no interference is required by this Court.
20. As such, I am in complete agreement with the view taken by the Appellate Court while rejecting the impugned delay application inasmuch as no sufficient cause was made out by the petitioner/plaintiff while filing the appeal, rather it found to be gross negligent in filing appeal which filed after about 16 years from passing of the order impugned in the appeal.
21. In view of the aforesaid conclusion, the present writ application is hereby rejected. Notice is discharged. No order as to cost.
(MAULIK J.SHELAT,J) Nilesh Page 16 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:40:40 IST 2025