Gujarat High Court

Vanesingbhai Bhikhabhai Gamit vs Chhitubhai Ratnabhai Gamit on 21 April, 2025

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                             C/SCA/17476/2024                               ORDER DATED: 21/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 17476 of 2024

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                                                VANESINGBHAI BHIKHABHAI GAMIT
                                                            Versus
                                                 CHHITUBHAI RATNABHAI GAMIT
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                      Appearance:
                      MR ANAND M RANPARA(10976) for the Petitioner(s) No. 1
                      MALAY S PATEL(8901) for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                       Date : 21/04/2025

                                                        ORAL ORDER

1. Rule returnable forthwith. Learned advocate Mr.Malay S.

Patel waives service of rule on behalf of respondent.

2. Heard learned advocate Mr. Anand M. Ranpara appearing

for the petitioner and learned advocate Mr. Malay S. Patel

appearing for respondent.

3. The present writ application is filed under Article 227 of

the Constitution of India seeking following relief.

"A) This Honourable Court may be pleased to admit and allow the present petition;

B) This Honourable Court may be pleased to issue Writ of Certiorari or any other appropriate writ, order, direction in the nature of certiorari or mandamus, and be pleased to quash and set aside the impugned order dated 30.11.2023 passed in Civil

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Miscellaneous (Delay) Application no. 74 of 2023 by the Court of Ld. Principal District Judge, Tapi at Vyara at Annexure - A, and further be pleased to direct to register the First Appeal filed by the petitioner herein, in the interest of justice;

C) Pending hearing till the final disposal of the present petition, this Honourable Court may be pleased to stay the execution, operation and implementation of the impugned order at Annexure - A in the interest of justice;

D) This Honourable Court may be pleased to grant any other and further relief as the nature and circumstances of this petition warrants."

4. As far as possible, the parties will be referred to as per

their original position before the Trial Court.

5. The short facts of the case appear to be that the

petitioner herein is original defendant of Regular Civil Suit

No.20 of 2006 filed by the respondent herein before the

Principal Civil Judge, Vyara seeking permanent injunction,

which came to be decreed by the Trial Court vide its judgment

and decree dated 12th October, 2017. It is to be observed here

that the defendant was appeared through a lawyer and filed

written statement and contested his suit.

5.1 The defendant, having received execution notice, came

to know about the decree passed by the trial court. The

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defendant appears to have filed an appeal in the year 2023

before the appellate court, against such decree, wherein there

was a delay of five years and eleven months in filing such

appeal.

5.2 After hearing the parties, the appellate court has

rejected the delay condonation application vide its order dated

30th November, 2023.

5.3 Being aggrieved and dissatisfied by the aforesaid order

passed by the appellate Court, the defendant has preferred the

present writ application.

SUBMISSION OF PETITIONER-DEFENDANT.

6. Learned counsel Mr.Anand M. Ranpara would submit that

the appellate court has not considered the two grounds which

were set out in the delay application and, taking a very

hypothetical approach, rejected the delay application.

6.1 Learned counsel Mr.Ranpara would submit that the

petitioner - defendant is coming from very poor strata of

society and not an educated person, solely relying upon the

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words of advocate could not file appeal, which was main cause

of the delay in filing appeal.

6.2 Learned counsel Mr.Ranpara would submit that there

was no malafide intention on the part of defendant in not

filing the appeal within stipulated time but due to causes

which were set out in the impugned application, delay of more

than five years occurred in filing appeal.

6.3 Learned counsel Mr.Ranpara would further submit that

at the given point of time, the petitioner was not properly

advised and so requested to his advocate, he would not file

appeal promptly, which resulted into delay.

6.4 Lastly, learned counsel Mr.Ranpara would submit that

as per settled legal position of law, the liberal approach to be

taken by the court while adjudicating delay application and to

advance substantial justice to the parties, the delay may be

condoned by imposing reasonable costs.

6.5 Making the above submission, learned advocate Mr.

Ranpara would request this court to allow the present writ

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application.

SUBMISSION OF RESPONDENT - PLAINTIFF.

7. Per contra, learned advocate Mr. Malay S. Patel would

submit that there is gross negligence on the part of petitioner

which resulted into delay of five years & eleven months in

filing the appeal, thereby, there is no error committed by

appellate court while rejecting delay application.

7.1 Learned counsel Mr. Patel would submit that no

sufficient cause is made out in the impugned delay application

and grounds set out in the application is bereft of any

particulars, as defendant was all throughout represented

through lawyer and, therefore, he cannot claim that he is not

aware about the rule of procedure.

7.2 Learned counsel Mr. Patel would further submit that

defendant was represented through a private lawyer and, if

really not able to spend money, could have availed legal aid,

which was not done so by him.

7.3 Learned counsel Mr. Patel would submit that ignorance

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of law is not a ground to condone the delay, especially when

defendant was represented through lawyer. Learned counsel

Mr. Patel would further submit that petitioner - defendant

cannot travel beyond impugned application and cannot come

out with new grounds of delay having not stated in the

impugned application.

7.4 Lastly, learned counsel Mr. Patel would submit that

considering the huge delay, carelessness and negligent attitude

of defendant, which has resulted into such delay, this Court,

while exercising its power under Article 227 of the Constitution

of India, may not entertain the present writ application as

there is no error on the part of appellate court while rejecting

the application.

7.5 Making the above submission, learned advocate

Mr.Patel would request this court to reject the present writ

application.

Analysis

8. The short question falls for this Court's consideration as

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to whether the order impugned passed by the appellate court,

thereby, not condoning the delay of five years & eleven

months in filing the appeal, is just and proper or not?

9. The facts, which are so stated hereinabove, are

undisputed one. It appears from bare perusal of the judgment

and decree passed by the trial court that defendant had

participated in the suit proceedings by filing his written

statement, lead the evidence and after hearing the parties, the

trial court has passed the judgment and decree on its merits

on 12th October, 2017.

10. After going through the impugned delay application, it

has not been clearly stated by the defendant that when he

came to know about the judgment and decree passed by the

trial court. The delay application is filed more casually and in

cavalier fashion, not giving any particulars explaining the delay

of five years and eleven months in filing the appeal. When

there is no sufficient explanation coming forth in the delay

application and in absence of sufficient cause made out, the

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court has no option but to reject such delay application.

11. It is true that while adjudicating delay application, liberal

approach is required to be considered by the court, thereby it

can hear the matter on merit, but paramount consideration

while adjudicating delay application under Section 5 of the

Limitation Act would be 'sufficient cause' to be made out by

the applicant.

12. As such, neither any sufficient cause is made out by the

defendant nor any particulars given in his delay application

about such huge delay in filing the appeal. It further appears

that such huge unexplained delay of five years and eleven

months in filing the appeal would show and constitute

negligence on the part of defendant in filing the appeal.

13. Now, law on this subject as far as condonation of delay

is more or less settled down by the Hon'ble Supreme Court. In

fact, the appellate court has also relied upon one of such

decision of Hon'ble Supreme Court while rejecting the

impugned delay application.

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14. It is apt to refer to the following decisions of Honourable

Supreme Court on the issue germane in the present writ

application.

15. First one which I would like to place reliance upon

would be 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 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

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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. It is apposite to refer to and rely upon another 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

2024 (4) Scale 759, wherein, after revisiting the law on the

subject 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

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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"

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

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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 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)

17. 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

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been so observed and held as under:-

"[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;

(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

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conditions have been imposed, tantamounts to disregarding the statutory provision."

(emphasis supplied)

18. Lastly, it is also profitable to rely upon the decision of

the Hon'ble Supeme 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)

19. I am of the view that there was a gross negligence on

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the part of defendant in filing appeal be lately after about 5

years 11 months from date of judgement/decree passed by the

trial court. No sufficient cause has been made out by

defendant in the impugned application. Thus, in view of the

aforesaid facts and ratio of various decisions of Hon'ble

Supreme Court so referred hereinabove, I am of the view that

there is no error, much less any serious error of law or a