Gujarat High Court
Sharnya Infra Pvt. Ltd vs Nareshbhai Kantilal Shah Proprietor Of ... on 14 October, 2025
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12964 of 2025
==========================================================
SHARNYA INFRA PVT. LTD & ORS.
Versus
NARESHBHAI KANTILAL SHAH PROPRIETOR OF JAIN STEEL TRADERS
==========================================================
Appearance:
MR MB GOHIL(2702) for the Petitioner(s) No. 1,2,3
MR MONARCH K PANDYA(11437) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 14/10/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mr. Monarch K. Pandya waives the service of notice of Rule on behalf of the respondent. With the consent of the parties, the matter is taken up for hearing.
2. Heard learned Advocate Mr. M. B. Gohil for the petitioners and learned Advocate Mr. Monarch K. Pandya for the respondent.
3. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs: Page 1 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025
NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined "[A] This application may be allowed.
[B] Be pleased to quash and set aside the order of the Ld. District & Sessions court of Rajkot dated 28/04/2025 in Civil Miss. Application no. 149 of 2024 of rejecting the delay condonation application this order has been marked and produced here as Annx-C and thereby confirming the order dated 26/03/2024 passed by the Learned Court of Addl. Judge, Small civil suit no. 127/2022 this order has been marked and produced here as Annx-A; [C] Be pleased to condone the delay in preferring the First Appeal before the Ld. District Court and remand the appeal for hearing on merits; [D] Any other and/or further relief/s that this Hon'ble Court may deem fit looking to the facts and circumstances of the case may be awarded to the present applicant."
4. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
4.1. Learned Advocate Mr. Gohil would submit that the Appellate Court has taken very hyper-technical view while not condoning the delay of around 8 months and 12 days in filing the First Appeal. It is submitted that there was no mala fide an intentional delay on the part of the petitioners having preferred the appeal after the period of limitation so prescribed under the Act. But, it remains an undisputed fact that before filing the regular appeal before the Appellate Court concerned, inadvertently on the part of the petitioners, they have preferred First Appeal before this Court, which was filed within the Page 2 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025 NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined period of limitation. But, having noticed the fact that it was inadvertently filed before this Court, registration of such appeal was refused with a view to file appropriate Regular Civil Appeal before the competent Appellate Court. 4.2. Learned Advocate Mr. Gohil would submit that due to such reason as aforesaid, there was a delay in filing the appeal;
otherwise, there is no gross negligence on the part of the petitioners having not filed the appeal within the stipulated time. It is further submitted that at no point in time, the petitioners have given up their right to file appeal, but due to inadvertence and bonafide pursuing wrong remedy resulted into such delay.
4.3. Lastly, learned Advocate Mr. Gohil would submit that the petitioners are facing money decree of Rs.22,69,988/- passed by the Trial Court impugned in the appeal. In that view of the matter also, as the right of the First Appeal should not be taken away on such hyper-technical grounds, with reasonable costs also, the Appellate Court ought to have condoned the delay. 4.4. Making the above submissions, learned Advocate Mr. Gohil would request this Court to allow the present writ application.
5. SUBMISSIONS ON BEHALF OF THE RESPONDENT: Page 3 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025
NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined 5.1. Per contra, learned Advocate Mr. Pandya would submit that the petitioners failed to make out any sufficient cause while filing the appeal before the District Court concerned and so, there is no error of law, much less any gross error of law committed by the Appellate Court while rejecting impugned delay application.
5.2. Learned Advocate Mr. Pandya would further submit that the petitioners failed to explain the delay from the date of passing of the judgment and decree by the Trial Court till the filing of their appeal before the District Court concerned and in that view of the matter, in view of the recent decision of the Hon'ble Supreme Court of India in the case of Shivamma (DEAD) By Lrs Vs. Karnataka Housing Board & Ors. reported In 2025 INSC 1104, this Court should not entertain the present writ application.
5.3. Learned Advocate Mr. Pandya would further submit that even during the course of trial of the suit, the defendants have neither led any evidence nor remained present, whereby, the suit went ex parte against them, resulted into decree. It is submitted that just to defeat the fruits of the decree to be Page 4 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025 NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined enjoyed by the respondent/plaintiff, the present petitioners have preferred the appeal.
5.4. Making the above submissions, learned Advocate Mr. Pandya would request this Court to reject the present writ application.
6. No other and further submissions are made.
7. Heard learned Advocates appearing for the respective parties at length.
8. Having heard learned Advocates appearing for the respective parties and after going through the impugned order, it appears that the petitioners, who happen to be the defendants, had appeared through their lawyer but did not remain present and having not led any evidence in support of their defence. In that view of the case, a money decree came to be passed against them. When, it came to the notice, initially they preferred an appeal before this Court, but having found that it is not a proper Court, they presented the appeal before the District Court, whereby, there was a delay of around 8 months and 12 days in filing such appeal.
Page 5 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025
NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined
9. It is true that there are some lapses on the part of the petitioners in presenting the appeal before the competent Appellate Court. At the same time, the conduct of the petitioners would not smack of any mala fide, dilatory tactics and/or intentional delay in the proceedings. As per the settled position of law, while adjudicating the delay application, the Court is required to take a liberal approach and some latitude is required to be considered to advance justice to the parties.
10. It is very well-settled position of law that in a case of any gross negligence, dilatory tactics and/or mala fide intention on the part of litigant to delay the trial or further legal proceedings, in all other cases, taking liberal approach, the Court requires to condone the delay albeit on appropriate conditions. As per the decision of the Hon'ble Apex Court in the case of Shivamma (supra), cited by learned Advocate Mr. Pandya, it was a case where there is an inordinate and gross delay sought to be condoned and in that factual scenario, the Hon'ble Apex Court laid down the law that in such type of cases, delay should not be condoned.
Page 6 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025
NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined
11. At the same time, it is also observed that the delay is required to be properly explained from the date of passing of the judgment/decree till filing of the appeal/further proceeding.
12. In the present case, it is remained undisputed fact that initially the petitioners preferred the appeal before this Court within the stipulated time, but having unmindful of fact that it is not maintainable. Be that as it may, having came to know of the notice, they collected back the papers of such appeal, to be presented before the District Court concerned and so, it appears that the lawyer of the petitioners at Rajkot contacted by them for instituting Regular Civil Appeal. It is also true that such presentation of appeal before this Court was in the month of June 2024 and the appeal came to be filed before the District Court concerned in the month of December 2024. Thereby, there would be some lapses/negligence on the part of the petitioners in pursuing the legal remedy. At the same time, in the absence of any mala fide on the part of the petitioners, this Court is of the view that, taking liberal approach to advance justice to the parties, it is inclined to condone the delay, inasmuch as this Court found satisfied itself that sufficient cause made out by petitioners while instituting the appeal Page 7 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025 NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined before the competent Appellate Court. This Court has already imposed a condition, thereby, directed the petitioners to deposit a cost of Rs. 15,000/- with the Registry of this Court, which is reported to be deposited by the petitioners. So, such amount requires to be paid to the respondent.
CONCLUSION
13. In view of the foregoing reasons, the present writ application deserves to be allowed, which is hereby allowed.
14. Accordingly, the impugned order dated 28.04.2025 passed by the 5th Additional District Judge, Rajkot in Civil Misc. Application No. 149 of 2024 is hereby quashed and set aside.
15. Consequently, the impugned delay application being Civil Misc. Application No. 149 of 2024 is hereby allowed.
16. The District Court, Rajkot shall register the appeal and after giving an opportunity of hearing to all the parties concerned, may decide the same as expeditiously as possible.
17. The Registry is hereby directed to remit the amount of cost of Rs.15,000/- to the respondent. Learned Advocate Mr. Pandya Page 8 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025 NEUTRAL CITATION C/SCA/12964/2025 ORDER DATED: 14/10/2025 undefined shall have to supply the bank details of the respondent to the Registry of this Court for the same to be done.
18. Direct service is permitted.
(MAULIK J.SHELAT,J) NILESH Page 9 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:19:52 IST 2025