Gujarat High Court
Hasmukhbhai Jaymalbhai Patel ... vs Jamnaben Wd/O Mohanbhai Lalabhai on 2 September, 2025
NEUTRAL CITATION
C/SCA/6049/2019 ORDER DATED: 02/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6049 of 2019
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HASMUKHBHAI JAYMALBHAI PATEL (DECEASED) & ORS.
Versus
JAMNABEN WD/O MOHANBHAI LALABHAI & ORS.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MR SHRIKAR H BHATT(2573) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mr. Shrikar H. Bhatt waives service of notice of Rule for respondents.
2. With the consent of the learned Advocates appearing for the respective parties, the matter is taken up for hearing.
3. Heard learned Advocate Mr. Kashyap R. Joshi for the petitioners and learned Advocate Mr. Shrikar H. Bhatt for the respondents.
4. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs: Page 1 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025
NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined "(A) Your Lordship be pleased to admit this petition and allow it by issuing the Writ of Certiorari or any other writ in nature of the Certiorari and quash and set aside the Order passed below Exhibit-10 in Civil Misc. Application No.29/2018 dated 14-2-
2019 rejecting the Application under section-5 of the Limitation Act and allow the same by permitting the institution of Regular Civil Appeal before the Additional District Judge, Ankleshwar by the present petitioner-Defendant against the Judgement and Decree passed in the Special Civil Suit No.132 of 2013 by Principal Sr. Civil Judge, Ankleshwar, District Bharuch in the interest of justice.
(B) Your Lordship be pleased to grant any other or further relief as may be deemed fit in the facts and circumstances of the present case considering the nature of the dispute involved herein in the interest of justice, equity and good conscience."
5. As far as possible, the parties will be referred to as per their original position before the Trial Court.
6. THE SHORT FACTS OF THE CASE:
6.1. The petitioners herein are legal heirs of the original defendant who died during the pendency of the present writ application, whereas respondents herein are original legal plaintiffs of Special Civil Suit No.132 of 2013, which was decreed in their favour vide judgment and decree dated 23rd February, 2017, passed by the Page 2 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined Trial Court concern. The original defendant appears to have challenged such judgment and decree before the Appellate Court by way of regular appeal filed on 27th April, 2018, wherein, there was a delay of around 403 days in filing such appeal. So, the defendant had preferred Miscellaneous Civil Application No. 29 of 2018, which was opposed by the plaintiffs. 6.2. After hearing the parties, the Appellate Court vide its impugned order dated 14th February, 2019, rejected the impugned delay application. Hence, the present writ application.
7. SUBMISSION OF THE PETITIONERS -
DEFENDANT:
7.1. Learned Advocate Mr. Joshi would submit that the judgment and decree impugned in the appeal was passed on 23rd February, 2017, but the original defendant was not intimated about passing of such judgment/decree by his advocate, which resulted into delay in filing the appeal.
7.2. Learned Advocate Mr. Joshi would further submit that when in the execution, notice came to be served upon Page 3 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined the defendant, he came to know about such judgment and decree passed by the Trial Court in favor of the plaintiffs. It is submitted that certified copy of such judgment and decree was applied on 12th April, 2018, which was ready and delivered to the defendant on 19th April, 2018 and immediately thereafter, he had preferred appeal on 27th April, 2018. It is submitted that as such, there is no gross negligence and/or inordinate delay in filing such appeal.
7.3. Learned Advocate Mr. Joshi would submit that though in the impugned delay application, the factum of non- intimation of the judgment and decree passed by the Trial Court by the Advocate of the defendant to him was mentioned, but it has been expressly stated that when the defendant came to the Trial Court, then after, such fact came to his notice. It is submitted that in fact, at given point of time, defendant was not made aware about passing of the judgement/decree in question. 7.4. Learned Advocate Mr. Joshi would further submit that as per the settled legal position of law, liberal approach is required to be considered by the Court while Page 4 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined adjudicating any delay application. It is submitted that the explanation given by the applicant (defendant) seeking condonation of delay requires to be considered liberally and some latitude is always required by the Court, which ultimately advance justice to the party. 7.5. Learned Advocate Mr. Joshi would further submit that the precious right of appeal available to the defendant - litigant, cannot be taken away on technicalities. It is submitted that by imposing some conditions, including costs, the delay could have been condoned by the Appellate Court and having not so condoned it, committed gross error of law.
7.6. Lastly, learned Advocate Mr. Joshi would submit that this Court may impose any condition upon the petitioners, including any cost and so also, they agreed to any action taken by the plaintiffs pursuant to the judgment and decree in execution, no equity would be claimed by the petitioners, pending the appeal. 7.7. So, making the above submissions, learned Advocate Mr. Joshi would request this Court to allow the present writ application.
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NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined 7.8. To buttress this argument, learned advocate Mr. Thakore would rely upon the following decision:
(i) Commissioner, Mysore Urban Development Authority V/S. S S Sarvesh Reported In (2019) 5 SCC 144.
8. SUBMISSION OF THE RESPONDENTS:
8.1. Per contra, learned Advocate Mr. Bhatt appearing for the respondents/plaintiffs would submit that there is no error, much less any gross error of law, committed by the Appellate Court while rejecting the impugned application, thereby, this Court should not exercise its supervisory jurisdiction in favor of the petitioners. 8.2. Learned Advocate Mr. Bhatt would further submit that there is no explanation coming forth in the delay application so filed by the original defendant while filing the appeal, inasmuch as no details have been mentioned which prevented the defendant not to file appeal within time.
8.3. Learned Advocate Mr. Bhatt would further submit that unless sufficient cause is made out by the defendant in his delay application, no delay could have been Page 6 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined condoned, which has correctly not been condoned by the Appellate Court. It is submitted that there is nothing to show in the delay application that the Advocate of the defendant had not informed about the judgment and decree passed by the Trial Court.
8.4. Learned Advocate Mr. Bhatt would further submit that execution proceeding was instituted by the plaintiffs on 5th April, 2018 i.e. after one year of passing of the judgment and decree and then after, such appeal was filed, is nothing but a belated action on the part of the original defendant, which should not be condoned by imposing any condition.
8.5. Lastly, learned Advocate Mr. Bhatt would submit that when there is no gross error of law and/or any jurisdictional error committed by the Appellate Court while passing the impugned order, this Court should not entertain the present writ application. 8.6. Making the above submissions, learned Advocate Mr. Bhatt would request this Court to dismiss the present writ application.
9. No other and further submissions are made. Page 7 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025
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10. Having heard the learned Advocates appearing for the respective parties and after going through aforesaid undisputed facts which are observed hereinabove, prima facie, it appears that the defendant was not made aware about the passing of the judgment and decree of the Trial Court. It is true that the judgment and decree has been seen by the learned Advocate of the defendant, but at the same time, there is nothing on record to show that the defendant was made aware about the passing of such decree. It further appears that the execution application so filed by the original plaintiffs/decree holder on 5th April, 2018 and on getting service of summons/notice in the execution, on 12th April, 2018, the defendant had filed an application to get certified copy of the judgment/decree passed by the Trial Court, which he obtained on 19th April, 2018 and then thereafter, filed appeal on 27th April, 2018. This would indicate that at relevant point of time, defendant was not made aware about of judgement/decree so passed by the Trial Court.
11. If all these facts are taken into account, it constitutes sufficient cause, inasmuch as, as per the settled legal Page 8 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined position of law, while adjudicating delay application, a liberal approach is required to be taken by the Court, thereby it can advance justice to the party.
12. At this stage, it would be profitable to refer to and rely upon the following decisions of Hon'ble Apex Court on the issue germane in the application.
13. The Honorable Supreme Court of India in the case of N Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123, held as under:-
"[9] It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly Page 9 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court."
(emphasis supplied) 13.1.Likewise, in a case of Collector, Land Acquisition, Anantnag V/s. MST Katiji reported in 1987 2 SCC 107 , wherein it has been held thus :-
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
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4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
(emphasis supplied) 13.2.It would also be apt to rely upon following observations so made by Hon'ble Apex Court in the Case of S. S. Sarvesh (supra), wherein held thus:
"17. Vivian Bose J., speaking for the Bench, in his distinctive style of writing made the following observations while dealing with the case arising out of Order 9 and reminded the Courts of their duty while deciding the case. The observations are apt and read as under:
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NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined "A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
"19. In our view, the Courts below should have seen that the first appeal is a valuable right of the appellant and, therefore, the Page 12 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined appellant-Authority was entitled for an opportunity to prosecute their appeal on merits. If the appellant's advocate did not appear may be for myriad reasons, the Court could have imposed some cost on them for restoration of their appeal to compensate the respondent(plaintiff) instead of depriving them of their valuable right to prosecute the appeal on merits. This is what Justice Vivian Bose has reminded to the Courts while dealing with the cases of this nature in Sangram Singh (supra) to do substantial justice to both the parties to the lis. Indeed, dismissal of the appeal in default and dismissal of the appeal on merits makes a difference. The former dismissal is behind the back of the litigant and latter dismissal is after hearing the litigant. The latter is always preferred than the former."
(emphasis supplied)
14. The conjoint reading of the aforesaid decisions and its ratio, if applied to the facts of the present case, I have no hesitation in coming to the conclusion that case made out for condonation of delay inas much as there is neither any gross negligence, dilatory tactics nor any inordinate delay on the part of the original defendant in filing the appeal. As observed above, the right of appeal Page 13 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined is a valuable right; which should not be taken away on mere technicality i.e. delay in filing appeal. It is required to be observed that when litigant is relying upon the word of Advocate having engaged and not properly either informed or advised, which ultimately causes delay in filing appeal, such cause would constitute sufficient cause unless contrary is proved on record. At the same time, it is also to be taken into account that if there would be any inordinate delay and/or negligence on the part of the applicant in pursuing the remedy available under law, the court may not shown any leniency towards such litigant/applicant thereby, even not condone such delay by imposing any condition.
15. In any case, considering the totality of facts and circumstances of the case, I am of the view that case is made out by the original defendant in the delay application, whereby, it can be safely said that due to sufficient cause, there was a delay in filing the appeal i.e. after the period of limitation.
16. At the same time, as submitted and agreed by learned Advocate Mr. Joshi that any benefit received by the Page 14 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025 NEUTRAL CITATION C/SCA/6049/2019 ORDER DATED: 02/09/2025 undefined decree holder (original plaintiffs) pursuant to the execution proceedings filed by them, no equity would claim by the petitioners herein until final outcome of the appeal so filed before the Appellate Court. So, the petitioners are hereby required to abide by their aforesaid oral undertaking and words given to this Court.
17. Nonetheless, it is required to be made clear that the Appellate Court shall have to decide the regular appeal so filed by the original defendant on its own merit, without being influenced by any of the observations so made hereinabove by this Court. The Appellate Court shall allow the petitioners herein being legal heirs of original defendant to be brought on record of the appeal.
18. Lastly, the respondents, who have to travel up to this Court, requires to be compensated by the petitioners and so, the petitioners are hereby directed to pay Rs.5,000/- as a cost of this matter to respondent No.1 herein i.e. Jamnaben Wd/o.Mohanbhai Lalabhai, within a period of 2 weeks from the date of receipt of copy of this order.
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19. In view of the aforesaid observations, discussions and reasons, the impugned order dated 14th February, 2019, passed by the Second Additional District Judge, Ankleshwar, in Civil Miscellaneous (Delay) Application No. 29 of 2018, is hereby quashed and set aside. Consequently, the Civil Miscellaneous (Delay) Application No. 29 of 2018, filed by the original defendant is hereby allowed, thereby, the delay of 403 days in filing the appeal is hereby condoned, subject to the payment of the aforesaid cost and the statement made by learned Advocate Mr. Joshi as recorded hereinabove. Once, such cost will be paid as aforesaid, the Appellate Court shall register the regular appeal filed by the original defendant by permitting petitioners herein to be brought on record and then after, decide the appeal on its merits in accordance with law.
20. Accordingly, the present writ application is hereby allowed. Rule made absolute to the aforesaid extent with cost. Direct service is permitted.
(MAULIK J.SHELAT,J) Nilesh Page 16 of 16 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:04:57 IST 2025