Gujarat High Court
Shri Gaushala Seva Trust vs Principal Secretary, Revenue ... on 12 September, 2025
NEUTRAL CITATION
C/SCA/12744/2025 ORDER DATED: 12/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12744 of 2025
==========================================================
SHRI GAUSHALA SEVA TRUST
Versus
PRINCIPAL SECRETARY, REVENUE DEPARTMENT(DISPUTES) & ORS.
==========================================================
Appearance:
MR ISHAN H RAJDEV(11634) for the Petitioner(s) No. 1
MR SHAILESH DESAI, AGP for the Respondent(s) No. 1,2,3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 12/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mr. Shailesh Desai waives service of notice of Rule for respondents.
2. With the consent of the learned advocate appearing for the respective parties, the matter is taken up for hearing.
3. Heard learned Advocate Mr. Ishan Rajdev for the petitioner and learned Advocate Mr. Shailesh Desai 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 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025
NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined
a) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature any other appropriate writ, order or directions quashing and setting aside the impugned order dated 14/07/2025 passed by the Ld. Principal District Court, Veraval at Gir-Somnath in Civil Misc. Application (Delay Condonation) Application No.20 of 2025;
b) Pending hearing and final disposal of this application, YOUR LORDSHIPS may be pleased operation, to stay of the execution 14/07/2025;
c) Such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted;
5. As far as possible, the parties will be referred to as per their original position before the Trial Court. SUBMISSION OF THE PETITIONERS - DEFENDANTS
6. At the outset learned advocate Mr. Ishan H. Rajdev appearing for the petitioner states that delay of 209 days in filing Regular Appeal was not condoned by the Appellate Court thereby, petitioner - original plaintiff requires to approach this Court.
6.1 Learned Counsel Mr. Ishan Rajdev states that there is no intentional or deliberate delay on the part of petitioner in not Page 2 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined to filing the appeal within the period of limitation. It is submitted that judgment and decree came to be passed by the trial Court on 19.07.2024 but learned advocate engaged by the petitioner lately informed about passing of such judgment/decree of trial Court on 04.03.2025. It is further submitted that upon receiving such information, the petitioner applied for its certified copy on 05.03.2025, which was received on 11.03.2025, and immediately thereafter, on 15.03.2025, appeal came to be filed.
6.2 Learned Counsel Mr.Ishan Rajdev would submit that the Appellate Court has taken very hyper-technical approach and misdirected itself by placing reliance upon decision of Hon'ble Supreme Court of India, which would not be applicable to the fact of the present case. Learned counsel Mr.Rajdev would submit that when there is no intentional delay & lapses on the part of petitioner in filing the appeal, and as such, there is nothing on record to suggest the same, Appellate Court could have exercised its discretion in favour of petitioner thereby, it Page 3 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined could have condoned the delay in filing appeal. 6.3 Learned Counsel Mr. Ishan Rajdev would respectfully submits that a Regular Appeal is a very vital right and it should not be frustrated merely on technicalities i.e. Delay. It is respectfully submitted that as per the settled legal position of law, while adjudicating delay application, the Court is required to take liberal approach and so also, shown some latitude toward the applicant. It is further submitted that unless, there is any mala fide, dilatory tactics, and gross negligence on the part of petitioner, the delay in filing the appeal ought to have been condoned by the Appellate Court, and having not done so, committed a jurisdictional error, which may be corrected by this Court while exercising its power under Article 227 of the Constitution of India. 6.4 Lastly, learned Counsel Mr. Ishan Rajdev would submit that the Appellate Court could have imposed some costs upon the petitioner for filing the appeal after period of limitation, but in any case, Appellate Court could not have shut the door of petitioner.
Page 4 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025
NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined 6.5 Making the above submissions, learned Counsel Mr. Ishan Rajdev would request this Court to allow the present writ application.
SUBMISSION OF THE RESPONDENTS
7. Per contra, learned Assistant Government Pleader Mr. Shailesh Desai, who vehemently opposed this writ application, contending that there is no sufficient cause made out by the petitioner while filing the appeal.
7.1 Learned AGP would submit that there is a gross delay of around 209 days in filing appeal and having not properly explained by the petitioner, no error can be found in the order impugned in the writ application. It is submitted that petitioner has not submitted any material on record to substantiate the cause set out in the delay application. 7.2 Learned AGP would further submit that as per settled legal position of law when a party is found to be negligent in approaching higher forum, as the petitioner is in the present case, with no condition, delay requires to be condoned. Page 5 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025
NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined 7.3 Lastly, learned AGP would respectfully submit that this Court should not exercise its discretion in favour of the petitioner while using its power under Article 227 of the Constitution of India, in a case where neither any gross error of law nor any jurisdictional error committed by the Appellate Court in rejecting impugned delay application filed by the petitioner.
7.4 Making the above submission, learned AGP would requests this Court not to entertain the present writ application.
8. No other and further submissions are made. ANALYSIS
9. Having heard the learned Advocates appearing for the respective parties and what emerges from their submissions, it remained undisputed that prima facie, that petitioners happen to be original plaintiffs of Regular Civil Suit No.70 of 2013, filed a suit seeking a declaration claiming a right, title, and interest over the suit property which belongs to defendants - State. Such suit after recording evidence, came to be dismissed Page 6 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined by the trial Court on 19.07.2024. It is the case of petitioner that dismissal of his suit was not immediately communicated by his advocate, but he came to know about it on 04.03.2025. Immediately thereafter, upon obtaining certified copy of the judgment/decree of trial Court on 11.03.2025, he filed appeal on 15.03.2025. Consequently, there was a delay of around 209 days in filing such appeal.
10. 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:-
10.1 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 Page 7 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined 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 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) 10.1 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.Page 8 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025
NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined
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) 10.2 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:
"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 Page 9 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined 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 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 Page 10 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined (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)
12. The explanation coming forth on the part of petitioner appears to be reasonable and bona fide inasmuch as this Court could not find any mala fide intent, dilatory tactics, and/or negligence on the part of petitioner in not filing the appeal within the stipulated time. It is well settled legal position of law that appeal is a right under statute available with the litigant and such right of appeal cannot be jeopardized on mere technicalities i.e. Delay. It is equally true that when the court found the explanation not trustworthy and the conduct of the applicant seeking condonation of delay is either mala fide, causing deliberate delay and/or any misstatement made on his behalf, no leniency can be shown to such applicant, seeking condonation of delay even though filed appeal..
13. Nonetheless, in absence of any such facts germane from Page 11 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined the application, ordinarily delay requires to be condoned by the Court, on appropriate condition if so advised.
14. If all these facts and ratio in the aforementioned decisions are taken into account, it constitutes sufficient cause, inasmuch as, as per the settled legal 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. The appellate Court has not taken into account all these factors while adjudicating delay application, which ultimately resulted into miscarriage of justice. To that extent, order impugned is not only erroneous but contrary to settled law.
15. 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 deposit Rs.5,000/- before the Appellate Court to be paid as a costs of this matter to respondents within a period of 2 weeks from the date of receipt of copy of this order.
CONCLUSION
16. In view of the aforesaid observations, discussions and Page 12 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025 NEUTRAL CITATION C/SCA/12744/2025 ORDER DATED: 12/09/2025 undefined reasons, the impugned order dated 14th July, 2025, passed by the Principal District Court, Veraval at Gir-Somnath, in Civil Miscellaneous (Delay) Application No. 20 of 2025, is hereby quashed and set aside. Consequently, the Civil Miscellaneous (Delay) Application No. 20 of 2025, filed by the original defendant is hereby allowed, thereby, the delay of 209 days in filing the appeal is hereby condoned, subject to the deposit of the aforesaid costs.
17. Once, such costs will be deposited and then paid to the respondents 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.
18. Accordingly, the present writ application is hereby allowed subject to the payment of aforesaid costs. Rule made absolute to the aforesaid extent. Direct service is permitted.
(MAULIK J.SHELAT,J) KKN Page 13 of 13 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:42:07 IST 2025