Bharatchandra Mohanlal Desai vs Tushar Rajnikant Shah

Gujarat High Court

Bharatchandra Mohanlal Desai vs Tushar Rajnikant Shah on 26 September, 2025

                                                                                                                  NEUTRAL CITATION




                            C/CA/4929/2025                                         ORDER DATED: 26/09/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 4929 of
                                                   2025

                                      In F/APPEAL FROM ORDER NO. 28026 of 2025

                     ==========================================================
                                             BHARATCHANDRA MOHANLAL DESAI
                                                                Versus
                                                  TUSHAR RAJNIKANT SHAH
                     ==========================================================
                     Appearance:
                     MR DIVYAM J JOSHI(12408) for the Applicant(s) No. 1
                     ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 26/09/2025

                                                          ORAL ORDER

1. Heard learned Advocate Mr. Divyam J. Joshi for the applicant at length.

2. The present application is filed under Section-5 of Limitation Act, seeking condonation of delay of 587 days in filing the Appeal from Order.

3. The Trial Court vide its order dated 26.10.2023 granted injunction application in terms of para-11(2) of such application. The impugned order passed by Trial Court would Page 1 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined suggest that despite appearance of learned Advocate of applicant herein happens to be defendant of the suit and granted several adjournments, applicant was unable to file his written statement/reply to injunction application. So, Trial Court closed his right to file such written statement/injunction application.

4. Accordingly, as none remained present on behalf of applicant, hearing of injunction application went ex-parte.

5. After hearing the opponent-plaintiff, learned Advocate of the opponent-plaintiff, the Trial Court accepted injunction application as prayed for.

6. The only ground which is set out in the delay application about inordinate delay of 587 days in filing this appeal would be non-communication of impugned order passed by Trial Court by Advocate of applicant to him.

7. It is stated in Para-2 of this application that Advocate concerned engaged by applicant was pregnant during pendency Page 2 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined of the proceeding and thereby, she failed to inform the applicant about passing of impugned order. Further stated, applicant remained under impression that matter was still pending and no adverse order was passed by Trial Court. It is also stated that applicant is aged about 78 years old and suffering from severe heart complications, under continuous medical treatment. Of course, no supporting evidence to that effect submitted with the application.

8. In light of the aforesaid factual background of the case, learned Advocate Mr. Joshi would humbly submit before this Court that delay may be condoned by this Court in the interest of justice, inasmuch as applicant was not duly represented before the Trial Court and considering the facts so mentioned in the delay application would constitute sufficient cause.

8.1. Learned Advocate Mr. Joshi would further submit that while adjudicating delay application, Court should avoid hyper technical approach and a liberal approach is required to be Page 3 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined considered in the interest of justice.

8.2. It is further submitted by him that applicant was remained under bona fide impression that matter was pending and as such, learned Advocate engaged by him having not informed the outcome of injunction application in time, resulted into delay in filing the appeal.

8.3. Lastly, learned Advocate Mr. Joshi would submit that one opportunity may be given to the applicant to defend the suit thereby, he can submit his defense in more effective and satisfactory manner.

8.4. To buttress his argument, he would rely upon following decisions of Hon'ble Apex Court of India:

(i) Rafiq and Anr. V/s. Munshilal and Anr. reported in AIR 1981 Supreme Court 1400 : 1981 SCC (2) 788;

(ii) 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.

8.5. Making the above submissions, learned Advocate Mr. Joshi would request this Court to allow the present application Page 4 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined and to condone the delay in the interest of justice.

9. The facts which are observed hereinabove are not in dispute. It remained undisputed on record of the case that despite granting several adjournments/opportunity to defendant-applicant herein to file his written statement/reply to injunction application, for any reasons, he did not avail such opportunities given to him by Trial Court.

10. Further, learned Advocate engaged by applicant having not appeared before the Trial Court and so also not informed applicant about final outcome of impugned order would not constitute a sufficient cause, inasmuch as per settled legal position of law, it would be incumbent upon applicant being party to the suit to get updates about suit proceeding from time to time from his engaged lawyer.

11. The factum of pregnancy of a lawyer engaged by applicant would be within knowledge of applicant himself when engaged her in the suit proceeding. Moreover, nothing Page 5 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined more substantiated by applicant on the record as to what would be the period of pregnancy as civil suit in question filed in the year 2022, whereas, the impugned order came to be passed by Trial Court only on 26.10.2023 and such appeal from order filed only on 02.09.2025.

12. The judgments upon which reliance placed by learned Advocate Mr. Joshi would not assist him due to following recent past judgment of Hon'ble Supreme Court on the issue germane in the application. One of such decision cited by learned Advocate Mr. Trivedi i.e. Pathapati Subba Reddy (supra), would rather run counter to his argument and such counterproductive to applicant.

13. Further, judgment in the case of Rafik (supra) is discussed in detail by Coordinate Bench of this Court in the case of Samusunisha Begaum W/O Dr Nasarullahkhan Dhaniani And Ors Versus Vishnukumar Ambelal Patel And Ors reported in 2012 (3) GLR 2565, delivered by Hon'ble Mr. Justice J. B. Page 6 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined Pardiwala (as his Lordship then was). In Samusunisha Begaum (supra), it is clearly held that negligence of Advocate having not remained present during suit proceeding and filing the affidavit by Advocate to support such fact, in terms criticized by this Court. The relevant observation made in said decision reads as under, "25. Under such circumstances, the trial Court committed a serious error in condoning delay on the ground that the Advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non-prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a 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. I regret to state that in the present case, learned Advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time, there is a growing tendency on the part of an Advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an Advocate filing his affidavit in an application filed under Order 9, Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an Advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice would condone the delay. Affidavit of an Advocate may come on record in the rarest of rare Page 7 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined circumstances and not as a matter of course. Let me assume for a moment that in the present case, concerned Advocate of the original plaintiff could not remain present on 20-9-1999 the day on which the trial Court dismissed the suit for non- prosecution, and thereafter, he was not able to keep a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once at least with his Advocate as regards the status of the suit? This could have been done even if the original plaintiff and his family was in U.S.A. I do not blame the original plaintiff in going to U.S.A. but being a litigant in the Court of Law he is expected to keep a close watch on the proceedings as well as on the status of such proceedings. After filing a civil suit a litigant cannot go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non-prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned. There is one more reason why I am very serious in commenting on the practice of Advocates filing affidavit. There is a general impression in the mind of the litigants that if a lawyer would file an affidavit saying that he was unable to attend the Court or because of his negligence the suit or appeal came to be dismissed then the Court would very willingly accept such explanation and condone the delay. This impression needs to be eradicated. Advocates at time forget that in the zeal to help the client by filing such affidavit they would land up in difficulty if a litigant would file proceedings for compensation on the ground of deficiency in service.

27. Mr. Shelat, learned Senior Counsel appearing for the respondents has relied upon the decision of the Supreme Court in case of Rafiq [AIR 1981 SC 1400]. As it can be seen from the above passage of the Supreme Court that Rafiq [AIR 1981 SC 1400] has been considered in Salil Dutta [1993 (2) SCC 185] and considering the judgment of Rafiq (supra) the bench observed that the observations made in Rafiq (supra) must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition.

28. In my opinion, the judgment of the Honble Supreme Court in Salil Dutta [1993 (2) SCC 185] can be made applicable with full vigour."

(emphasis supplied) Page 8 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined

14. As referred hereinabove, there are several recent past decisions on aspect of what are consideration must be born in mind by the Court while adjudicating delay condonation application having analyzed scope & ambit of Section-5 of Limitation Act requires to be taken note by this Court, which would be as follows:

14.1. It is apt to rely first relied 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 Page 9 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined 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 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) 14.2. 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 Page 10 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined 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 injustice.

21.2. (ii) The terms "sufficient cause"

NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined 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 Page 12 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined 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) 14.3. 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:

NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined "[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 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;

NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined

(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) 14.4. 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 Page 15 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined 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) 14.5. Even, recently also, the Hon'ble Supreme Court in the case of Shivamma (DEAD) By Lrs Vs. Karnataka Housing Board & Ors. reported In 2025 INSC 1104 , in clear terms held that where there is delay/laches on the part of the applicant in not prosecuting the legal remedy, in the absence of any sufficient cause made out by the applicant, the Court should not condone the delay while exercising its power under Section 5 of the Limitation Act, 1963. In the case of Shivamma (Supra), the Hon'ble Supreme Court has held thus:-

"258. The length of the delay is 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, it appears that they want to fix their own period of limitation for 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 Page 16 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined 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, it 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 bring into aid the merits of the matter for the purpose of condoning the delay."

(emphasis supplied)

15. Thus, in light of the aforesaid facts and circumstances of the present case, the cause of delay in filing appeal would be due to sheer negligence, lethargy and indolent approach on the part of applicant-defendant having though appeared through lawyer but chosen not to file written statement/injunction application. It does not appear from the record that at given point of time during pendency of the injunction application, applicant tried to submit written statement/injunction application. Even after getting knowledge of said order and fact that his written statement is not on record, as on date Page 17 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined also, it seems that applicant has not taken any steps to submit his written statement. Such a gross negligent act on the part of applicant would not require to be condoned by this Court by imposing any condition.

16. The question of merit cannot be gone by this Court, inasmuch as per the recent decision in the case of Shivamma (supra) and so also Pathapati Subba Reddy (Died) BY L RS & ORS (supra), Court while examining the delay application cannot first look into the merit of the matter. Nevertheless, it is not out place to observe that suit is instituted seeking specific performance of an agreement to sale, wherein, injunction granted in terms of para-11 (2) of injunction application by the Trial Court, whereby applicant-defendant appears to be owner of the suit property directed not to transfer, alienate, create third party rights over suit property in any manner whatsoever.

17. In light of the aforesaid observations, discussions and Page 18 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025 NEUTRAL CITATION C/CA/4929/2025 ORDER DATED: 26/09/2025 undefined reasons, this Court having not find any merit in the present delay application inasmuch as not found any sufficient cause made out by the applicant, thus, the present application is rejected.

18. The Registry shall refuse the registration of Appeal from Order and Civil Application for stay, if any, filed therein.

(MAULIK J.SHELAT,J) Diksha/Nilesh Page 19 of 19 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 21:46:20 IST 2025