Gujarat High Court
Rameshbhai Gandubhai Gujarati vs Shantaben Keshubhai Gujarati on 23 April, 2025
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10144 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
==========================================================
RAMESHBHAI GANDUBHAI GUJARATI & ORS.
Versus
SHANTABEN KESHUBHAI GUJARATI & ANR.
==========================================================
Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1,2,3
MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No. 1,2
MR RR TRIVEDI(941) for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/04/2025
ORAL JUDGMENT
1. The present writ application is filed under Article 227 of the
Constitution of India seeking the following reliefs :
"(A) To admit this petition;
(B) To issue an appropriate writ, order or direction
quashing and setting aside the order dated 29.5.2010
passed by the Presiding Officer, Fast Track Court No. 7,
Gondal Camp Jetpur in Civil Misc. Application No. 407 of
2009 thereby allowing the said application of the
petitioners by condoning the delay in preferring the appeal
and further be pleased to direct that the appeal of the
petitioners be heard and decided in merits;
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
(C) During pendency and final hearing of the petition be
pleased to transfer, alienate, create any charge or interest
admeasuring 1-49-73 H-Are-Sq. Mtr situated at village
Bava Pipaliya in any manner whatsoever,
(D) Grant any other and further reliefs which deems fit
and proper in the interest of justice. "
2. The parties will be referred as far as possible as per their
original position in the suit.
3. The short facts of the case are as follows :
3.1 The petitioners herein are original defendants in Regular
Civil Suit No. 66 of 1995 filed by respondent no. 1 seeking
declaration and injunction, appeared through their lawyer and
filed their written statement, but thereafter never turned up to
submit their oral and documentary evidence in support of their
defense. Whereas, the plaintiff submitted her oral and
documentary evidence and examined witnesses to prove her
case.
3.2 The trial Court, vide its judgment and decree dated 29th
April 2002, allowed the suit in favour of the plaintiff and
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
granted the declaration and injunction as prayed for in the
suit.
3.3 The defendants did not challenge that said judgment and
decree for quite a long time but subsequently filed a Regular
Civil Appeal in the year 2009. As there was a delay of seven
years and six months in filing the appeal, the defendants
preferred an application to condonation of such delay.
3.4 It further appears that during the interregnum, prior to
filing the appeal, the plaintiff sold the suit land in favour of
respondent no. 2, whereupon the defendants preferred the
appeal proceedings as well as the delay condonation
application. The respondents opposed the delay application by
filing their reply, contending inter alia that the defendants
were not aware of the judgment and decree passed by the trial
Court in the year 2002, since, following that decree, a
mutation entry was made by the Revenue Authority and before
doing so, a notice was issued under Section 135D of the
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
Bombay Land Revenue Code, which was sent to the defendants
by UPC and served on 29th October 2002. The necessary postal
certificate was submitted by respondents with their reply
opposing delay application.
3.5 It was further contended that, the defendants had not
participated in the suit proceedings and remained negligent all
throughout and having not disclosed sufficient cause in the
delay application, it was prayed to reject the delay application
as the same was devoid of merit and lacked bona fide.
3.6 After hearing the parties, the Appellate Court, vide its
order dated 29th May 2010, rejected the delay condonation
application filed by the defendants, thereby refusing to
condone the delay in filing the appeal. Aggrieved by that
order, the defendants have preferred the present writ
application.
4. Submissions of the Petitioners - defendants:
4.1 Learned counsel Mr. Prateek Jasani appearing for the
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
petitioners - original defendants would submit that, the
Appellate Court erroneously rejected the delay application
without considering that the defendants were in fact not aware
of the judgment and decree passed by the trial Court.
4.2 Learned counsel Mr. Jasani would further submit that, the
defendants were not informed about the passing of the
judgment and decree by trial Court by their lawyer, which
caused the delay in filing the appeal.
4.3 Learned counsel Mr. Jasani would further submit that,
when the plaintiff sold the suit land in favour of
respondent no. 2 in the year 2009, the defendants came to
know of the judgment and decree upon seeing the mutation
entry No. 1235 in favour of respondent no. 2, which has been
also challenged before the competent Revenue Authority.
4.4 Learned counsel Mr. Jasani would further argue that, the
defendants are not educated and were not well versed in legal
proceedings and having not been properly advised by their
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
lawyer at the relevant time, resulted in the passing of the
judgment and decree as well as the delay in filing the appeal.
4.5 Learned counsel Mr. Jasani would further submit that, the
defendants have a good case on merits and if the delay had
been condoned, they could have substantiated their case before
the Appellate Court, thereby the appeal could have been
decided on its merits.
4.6 Learned counsel would further submit that, the length of
delay is not a ground to reject delay application but where
there is a sufficient cause made out, the Appellate Court ought
to have taken a liberal approach and could have condoned the
delay, possibly by imposing costs.
4.7 To buttress his arguments, Mr. Jasani relies upon the
decision of Hon'ble Apex court in case of Inder Singh vs. State
of Madhya Pradesh reported in 2025 (O) AIJEL - SC 74939 :
2025-INSC-382.
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
4.8 Making the above submissions, learned counsel Mr. Jasani
requested this Court to allow the present writ application.
5. Submissions of the Respondents - Plaintiff/Respondent
No.2 :
5.1 Per Contra, Learned counsel Mr . B. B. Trivedi appearing
for the respondents - original plaintiffs would submit that,
there was gross negligence on the part of the defendants
resulting in a delay of seven years and six months in filing the
appeal and therefore no error was committed by the Appellate
Court in rejecting the delay application.
5.2 Learned counsel Mr. Trivedi would further submit that, no
sufficient cause was made out in the delay application, which
was bereft of particulars, as the defendants were represented
by lawyer throughout and thus could not claim ignorance of
procedural developments.
5.3 Learned counsel Mr. Trivedi would further submit that, the
defendants did not lay any evidence or participate in the trial
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
of the suit and cannot now blame their advocate, since there is
nothing on record to suggest they contacted their lawyer
during the suit's pendency, thereby indicating their own
negligence. Considering the defendants' conduct during trial
and post judgment, it is apparent that there was gross
negligence on their part in not filing the appeal within a
reasonable time.
5.4 Learned counsel Mr. Trivedi would further submit that,
notice was served in the year 2002, under section 135D of the
Bombay Land Revenue Code and proof of service was filed,
which the defendants did not controvert, indicating their
awareness of the judgment and decree. Therefore, they
suppressed material facts and are not entitled to equitable
relief.
5.5 Learned counsel Mr. Trivedi would further submit that,
after passing of decree by trial Court and prior to filing of
appeal, third party interest has been created having sold suit
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
property in favour of respondent no.2 then serious prejudice
would be caused if delay would have been condoned by
appellate court. So, according to him, this Court should not
interfere with impugned order.
5.5 Lastly, learned counsel Mr . Trivedi would submit that,
none intimation of judgment and decree by an advocate is not
a sufficient cause to condone delay and that under Article 227
of the Constitution of India, the High Court should not
interfere with the Appellate Court's discretion unless exercised
arbitrarily.
6. No other and further submissions being made by the
respective learned advocates.
7. Point for determination:
7.1 The short question falls for consideration of this Court is,
whether the impugned order of the Appellate Court refusing to
condone a delay of seven years and six months by the
defendants is just, proper and in accordance with law or not ?
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
8. Analysis :
8.1 The facts as stated above are undisputed. The defendants
did not participate in the trial of the suit, having submitted
only their written statement without submitting any oral or
documentary evidence and thus, did not contest the suit. In
contrast, the plaintiff adduced oral evidence, examined
witnesses and submitted documentary evidence, and having
convinced the trial Court, it decreed the suit in her favour in
the year 2002.
8.2 A mutation entry was also mutated in the revenue records
in the year 2002, and a notice under Section 135D of the
Bombay Land Revenue Code was issued and served on the
defendants, albeit through UPC and such a fact, they did not
deny before the Appellate Court. This clearly indicates their
awareness of the judgment and decree of trial Court in the
year 2002 itself. Such a fact, they were expected to disclose in
their delay condonation application but failed to do. Instead,
the defendants merely stated that they became aware of the
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
decree upon the mutation of Entry No. 1235 in favour of
Respondent No. 2 in the year 2009, without explaining how
they came to know of that mutation, more particularly while
mutating such entry in year 2009, no notice was served upon
them as name of plaintiff has already been mutated earlier in
year 2002. This conduct demonstrates that the defendants did
not approach the court with clean hands.
8.3 At this stage, it is necessary to observe that when there is
a mis-statement, incorrect statement, and/or suppression of
material facts by an applicant seeking condonation of delay -
which is an equitable and discretionary relief - such
suppression/misstatement/incorrect fact dis-entitles the applicant
from obtaining the relief sought.
8.4 It would be profitable to rely upon the observations made
by the Honourable Supreme Court of India in case of Pundlik
Jalam Patil vs. Executive Engineer, Jalgaon Medium Project,
(2018) 7 SCC 448, reads as under;
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
"11.Whether the respondent made incorrect statement in
the application seeking condonation of delay?
There is no dispute whatsoever that the respondent
being the beneficiary of the acquisition has been duly
impleaded as a party respondent in the reference cases
as is required in law. It not only appeared in the
matter through a properly instructed counsel but also
filed its written statement opposing the claim for
enhancement of compensation but did not choose to
lead any evidence whatsoever. In the application filed
in the High Court the plea taken by the respondent is
as under:
"The applicant submits that, although the
applicant being Acquiring Body, was arrayed as
opponent in the said reference, the opponent no.
4 herein (Original Opponent No. 1) S.L.A.O. or
his subordinate contested the said reference by
filing written statement. Therefore, this applicant
was unaware about the stand taken by S.L.A.O.
as well as the impugned judgment and award."
This averment in the application on the face of it is totally
incorrect. [12] The Law & Judiciary Department as early as
on 13.4.2000 i.e. to say within the period of 15 days from
the date of the award of the Reference Court
communicated its decision to acquiesce in the decision of
the Reference Court and communicated the same to all the
concerned including the beneficiary of the acquisition.
It is not the case that the Executive Engineer did not
receive the said communication. Having received the said
communication the respondent did not act in the matter
and initiated any steps for filing the appeals if it was
really aggrieved by the decision of the Reference Court.
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
There is no doubt whatsoever in our mind that the
respondent made totally incorrect statement in the
application filed in the High Court. We express our
reservation as to the manner in which a public authority
conducted itself in its anxiety to somehow get the relief
from the court. In our considered opinion incorrect
statement made in the application seeking condonation of
delay itself is sufficient to reject the application without
any further inquiry as to whether the averments made in
the application reveal sufficient cause to condone the
delay. That a party taking a false stand to get rid of the
bar of limitation should not be encouraged to get any
premium on the falsehood on his part by condoning delay.
[See: (1993)1SCC 572].
13.Whether the High Court properly exercised its
discretion?
The High Court in its order having noticed the relevant
fact in categorical terms held that there was no
substance in the plea that it was unaware about the
judgment and award passed by the Reference Court
since it was a party before the Reference Court and
contested the matter. The High Court also found that
the decision of the Joint Secretary to acquiesce was
communicated to the beneficiary of the acquisition and
therefore, its plea about the unawareness of the award
and decision taken by the Government cannot be
accepted. The High Court in its order emphatically
rejected the ground raised by the respondent in that
regard. In such view of the matter can it be said that
the High Court properly exercised its jurisdiction? It is
true that the power to condone the delay rests with the
court in which the application was filed beyond time
and decide whether there is sufficient cause for
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
condoning the delay and ordinarily the superior court
may not interfere with such discretion even if some
error is to be found in the discretion so exercised by
the court but where there is no sufficient cause for
condoning the delay but the delay was condoned, it is
a case of discretion not being exercised judicially and
the order becomes vulnerable and susceptible for its
correction by the superior court. The High Court having
found that the respondent in its application made
incorrect submission that it had no knowledge of the
award passed by the Reference Court ought to have
refused to exercise its discretion. The High Court
exercised its discretion on wrong principles. In that
view of the matter we cannot sustain the exercise of
discretion in the manner done by the High Court ."
(emphasis supplied)
8.5 Applying the ratio of Pundlik Jalam Patil (supra), the
defendants are not entitled to any equitable and discretionary
relief from the Court having not disclosed true and correct
facts about factum of receipt of knowledge about judgement
and decree passed by trial court.
8.6 It is further required to be noted that, entire blame has
been put on the head of the advocate who alleged to have not
informed defendants about passing of judgment and decree by
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
the trial Court. The defendants have not even whispered in
their delay application that they were, in fact, in touch with
their lawyer during the course of the trial of the suit and
receiving updates from their lawyer. Moreover, the defendants
have not even stated that they were genuinely keen to
participate in the trial but, due to a lack of proper knowledge
and information from their lawyer, they were unable to do so.
This omission further undermines their claim for condoning the
delay, as it suggests their negligence in failing to actively
engage with the suit proceedings and so also prior to filing of
appeal.
8.7 As such there is no sufficient cause made out in the delay
application which is bereft of any particulars and not
supported by any documentary evidence to substantiate their
statement made in the delay application. The bare reading of
delay application coupled with the fact that defendants have
not participated in the trial of suit would constitute gross
negligence on the part of defendants either in conducting the
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
trial of suit and / or filing appeal against judgment and decree
passed by the trial Court.
8.8 There is no caveat 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. Having so observed
herein above, neither any sufficient cause is made out by the
defendants nor any particulars given in his delay application
about such a huge delay in filing the appeal, defendants are
not entitled to get any relief. It further appears that such a
huge, unexplained delay of seven years and six months in
filing the appeal would indicate and constitute negligence on
the part of the defendants in pursuing the appeal. Further,
third party right has been created as plaintiff has sold suit
land in favour of respondent No.2 prior to filing of appeal
then by showing any leniency to act of defendants would
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
definitely prejudice rights of respondents herein which is one
of the additional factor would disentitled defendants to claim
any discretionary relief from the Court.
8.9 It is now well-settled legal position of law, so far as
condonation of delay is concerned, as by now it has been
more or less settled down by the Hon'ble Supreme Court. So,
It is apt to refer to the following decisions of Honourable
Supreme Court on the issue germane in the present writ
application.
9. 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 Vs. 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
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
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 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)
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
9.1 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 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
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
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
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
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
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)
9.2 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 Vs. 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
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
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;
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
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)
9.3 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
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
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)
10. The judgment cited by learned advocate Mr. Jasani is
distinguishable on facts; for instance, in Indra Singh (supra), the
dispute involved between the State and a private party, with
active participation and contest on merits from the outset,
unlike the present case. The High Court in that case, having
condoned the delay was challenged by private party before
Apex Court. So, considering such background of facts, Apex
Court has not interfered with the order of high court
condoning the delay. As such facts on hand and cited case are
not similar but quite distinguishable on all respect and
especially in case on hand, appellate court has not used its
discretion in favour of defendants by observing no sufficient
cause made out by them. Thus, examination of merit of the
matter would stand on different footing which would well
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
defined by several decisions of Hon'ble Apex Court. Few would
referred herein below.
10.1 It is by now well settled legal position of law that in a
case where any positive exercise of discretion by Court below
then, appellate court should ordinarily would not interfere with
such discretion exercised by Court unless its arbitrary, perverse
and or contrary to settled legal position of law.
10.2 It would apt to refer and rely upon following decisions of
Hon'ble Supeme Court of India which has clarified such aspect
of the matter.
10.3 In a case of N Balakrishnan vs. M. Krishnamurthy reported in
(1998) 7 SCC 123, it has been 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
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
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 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."
10.4 Likewise, in a case of Sheo Raj Singh(D) Tr.Lrs.. vs Union
Of India reported in (2023) 10 SCC 531 held thus:-
"33. Be that as it may, it is important to bear in mind
that we are not hearing an application for condonation
of delay but sitting in appeal over a discretionary order
of the High Court granting the prayer for condonation
of delay. In the case of the former, whether to condone
or not would be the only question whereas in the
latter, whether there has been proper exercise of
discretion in favour of grant of the prayer for
condonation would be the question. Law is fairly well-
settled that "a court of appeal should not ordinarily
interfere with the discretion exercised by the courts
below". If any authority is required, we can profitably
refer to the decision in Manjunath Anandappa v.
Tammanasa, 2003 10 SCC 390. which in turn relied on
the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel
Tubes Mazdoor Sabha, 1980 2 SCC 593. where it has
been held that "an appellate power interferes not when
the order appealed is not right but only when it is
clearly wrong".
41. Having bestowed serious consideration to the rival
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
contentions, we feel that the High Court's decision to
condone the delay on account of the first respondent's
inability to present the appeal within time, for the
reasons assigned therein, does not suffer from any error
warranting interference. As the aforementioned
judgments have shown, such an exercise of discretion
does, at times, call for a liberal and justice-oriented
approach by the Courts, where certain leeway could be
provided to the State. The hidden forces that are at
work in preventing an appeal by the State being
presented within the prescribed period of limitation so
as not to allow a higher court to pronounce upon the
legality and validity of an order of a lower court and
thereby secure unholy gains, can hardly be ignored.
Impediments in the working of the grand scheme of
governmental functions have to be removed by taking a
pragmatic view on balancing of the competing
interests."
11. Finally, while exercising supervisory jurisdiction under
Article 227 of the Constitution of India, the High Court should
refrain from interfering with the discretionary orders of the
Appellate Court and there is limitation, thereby this court
cannot substitute its own view and the view taken by court
below unless palpably arbitrary, erroneous, perverse and passed
contrary to settled legal position of law, which is not
demonstrated here by defendants. [ See Sameer Suresh Gupta
TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9)
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand
Goel, reported in (2022) 4 SCC 181 (Para 15 and 16) ]
12. Conclusion:
12.1 Thus, upshot of said discussion would lead to one
conclusion that, there was gross negligence on the part of the
defendants in filing the appeal be lately, approximately seven
years and six months after the date of the judgment/decree
passed by the trial court. No sufficient cause has been made
out by defendant in the impugned application.
12.2 In view of the aforesaid facts and ratio of various
decisions of Hon'ble Supreme Court so referred herein-above, I
am of the view that there is no error, much less any serious
error of law or a jurisdictional error of law committed by
appellate court while rejecting the impugned application.
12.3 In view of the foregoing reasons, the order impugned
passed by the Appellate Court in rejecting the delay
condonation application is just and proper, and the writ
NEUTRAL CITATION
C/SCA/10144/2010 JUDGMENT DATED: 23/04/2025
undefined
petition deserves to be dismissed and the same is hereby
dismissed. Rule discharged. No other as to costs.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
