Gujarat High Court
Bharatbhai Kurichand Kalal vs Gujarat State Forest Development ... on 24 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5599 of 2025
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BHARATBHAI KURICHAND KALAL
Versus
GUJARAT STATE FOREST DEVELOPMENT CORPORATION LTD
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Appearance:
MR Y J PATEL(3985) for the Petitioner(s) No. 1
MS JIGNESH A PATHAK(5182) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/04/2025
ORAL ORDER
1. Heard learned advocate Mr. Y. J. Patel for the
petitioner.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari
or a writ in the nature of certiorari or any other appropriate writ, order or
direction quashing and setting aside impugned order dated; 13.11.2024
passed by the learned 11th additional district judge, Vadodara in CMA
No. 509 of 2024 below exh.1 (at ANNEXURE-B (Colly) hereto), and
further be pleased to allowed the CMA No. 509 of 2024 below exh.1
filed by the petitioner (original defendant) before the learned 11th
Additional District and Session Judge, Vadodara;
(B) During the pendency and final disposal of the present petition
YOUR LORDSHIPS may be pleased to stay operation, implementation
and execution of the order, judgment and decree dated; 03.05.2019
passed by the learned Principal Senior Civil Judge, Vadodara in
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special civil suit no. 496 of 2008 (At Annexure-A (Colly):
(C) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case."
Short facts of the case.
3. The petitioner happens to be defendant of Special Civil
Suit No. 496 of 2008 filed by the respondent herein. The suit
was filed for recovery of amount of Rs. 5,44,503/- which was
decreed in favour of the plaintiff by the trial Court vide its
judgement and decree dated 03.05.2019.
3.1 The petitioner- defendant has not challenged the
judgment and decree within stipulated time but having
received summons and execution proceeding, defendant
chooses to challenge the decree before the appellate Court
by way of Regular Civil Appeal, wherein there was a delay of
4 years and 10 months in filing such appeal.
3.2 The defendant has filed delay application which was
contested by the plaintiff. After hearing the parties, the
appellate Court vide its order dated 13.11.2024 has rejected
the delay application. Such order passed by the appellate
Court has been assailed by the defendant by way of the
present writ application.
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Submission of the petitioner- defendant
4. Learned advocate Mr. Y.J. Patel for the petitioner
would submit that despite showing sufficient cause in not
preferring the appeal within stipulated time, the appellate
Court has erroneously rejected the delay application. He
would further submit that the Advocate who was engaged
by the defendant died, thereby, defendant could not be
intimated and made known to the judgement and decree
passed by the trial Court, which has ultimately resulted into
delay in filing appeal.
4.1 Learned advocate Mr. Patel would further submit that
the defendant was suffering from Jaundice and due to his
illness, he could not contact his Lawyer. Lastly, he would
submit that a liberal approach could have been taken by the
appellate Court while adjudicating the delay application as it
is settled legal position of law that condonation of delay is
rule and rejection is exception. At best with reasonable cost
to be paid to other side, the delay ought to have been
condoned by the appellate Court.
4.2 Making the above submission, learned advocate Mr.
Patel would request this Court to allow the present writ
application.
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Analysis
5. The facts which are observed herein above not in
dispute. The appellate Court has examined the merit of the
delay application whereby, it could not found any sufficient
cause thereby, impugned application was rejected.
6. As such, there was a huge delay of 4 years and 10
months in filing appeal by the defendant. True, the length of
delay is not required to be taken into account while
adjudicating delay application but when there is an
inordinate delay, the Court is required to consider entire set
of conduct of the applicant who sought condonation of delay
as well as explanation coming forth in the delay application.
7. It appears from the record that there is a negligence on
the part of the defendant as post decree, there is nothing on
record to suggest that in those 4 years and 10 months, at
relevant point of time, defendant who is a proprietary
concern had contacted his Lawyer. Further, no particulars
about death of defendant's Lawyer as well as suffering from
Jaundice by the defendant is submitted on record. When
there is such a vague excuse submitted by the applicant
which is not supported by the material particulars, there is a
reason to believe that such averment is made just to gain
sympathy of the Court especially when plaintiff has objected
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delay application.
8. It has been further observed by the appellate Court
that defendant has received execution notice on 20.09.2023
and also about 5 months thereafter, appeal came to be filed
which shows how casual petitioner is in preferring the
appeal. The appellate Court has categorically recorded
findings that the petitioner- defendant is remain negligent in
filing appeal.
9. It is well settled legal position of law that if the Court
found that there is negligence and or gross negligence and
inordinate delay by the applicant in pursuing legal remedy
thereby, seeking condonation of delay, even if there is
sufficient cause made out, the Court would not lean towards
such applicant by condoning the delay, which was caused due
to his own negligence.
10. At this stage, it is also apt to rely upon the few recent
decisions of Honourable Supreme Court of India, firstly in a
case of Rajneesh Kumar & Anr V/S Ved Prakash reported in
2024 (14) SCALE 406 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
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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 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)
10.1 It is apposite to refer and rely upon another
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 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:
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"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" 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
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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 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)
10.2 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
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cause". It has 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 conditions have been imposed,
tantamounts to disregarding the statutory provision."
(emphasis supplied)
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10.3 Lastly, it is also profitable to rely upon the
decision of the Hon'ble Supeme Court of India in the 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)
11. Thus, it is now well-settled that if the Court finds the
applicant is negligent or there is inaction on the part of the
applicant, or want of due diligence, thereby constituting a
long delay in filing any such appropriate application, the
Court should not condone such negligent acts on the part of
the applicant even by imposing any conditions including
costs. So, in view of the aforesaid authoritave
pronouncements by honourable Supreme Court of India in
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the case of Rajneesh Kumar & Anr (Supra), K.B. Lal (Krishna
Bahadur Lal) (supra), Pathapati Subba Reddy (Died) BY L
RS & ORS (Supra) and Basawaraj and Another (Supra)
applied to the facts of case on hand, no case is made out by
petitioner for condonation of delay, thereby the trial Court
has committed error much less any gross error while
rejecting impugned delay application.
12. At last, I would also like to observe that this Court while
exercising its power under Article 227 of Constitution of
India would not substitute its own view by disturbing view
taken by Court below unless its shown any perverse,
erroneous and arbitrary approach on part of Court below
thereby, not followed settled legal position of law which has
resulted into miscarriage of justice. Such scope of
interference by this Court is well defined by Honourable
Supreme Court. It is profitable to rely upon decision in a case
of Garment Craft v. Prakash Chand Goel, reported in
(2022) 4 SCC 181, wherein the Hon'ble Supreme Court of
India has held as under:-
"15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [Prakash Chand Goel v. Garment Craft,
2019 SCC OnLine Del 11943] is contrary to law and cannot be
sustained for several reasons, but primarily for deviation from the
limited jurisdiction exercised by the High Court under Article 227 of
the Constitution of India. The High Court exercising supervisory
jurisdiction does not act as a Court of first appeal to reappreciate,
reweigh the evidence or facts upon which the determination under
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challenge is based. Supervisory jurisdiction is not to correct every
error of fact or even a legal flaw when the final finding is justified or
can be supported. The High Court is not to substitute its own decision
on facts and conclusion, for that of the inferior Court or tribunal.
[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1
SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the
nature of correctional jurisdiction to set right grave dereliction of duty
or flagrant abuse, violation of fundamental principles of law or justice.
The power under Article 227 is exercised sparingly in appropriate
cases, like when there is no evidence at all to justify, or the finding is
so perverse that no reasonable person can possibly come to such a
conclusion that the Court or tribunal has come to. It is axiomatic that
such discretionary relief must be exercised to ensure there is no
miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court
in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass
Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102,
para 6)
"6. The scope and ambit of exercise of power and jurisdiction by a
High Court under Article 227 of the Constitution of India is examined
and explained in a number of decisions of this Court. The exercise of
power under this article involves a duty on the High Court to keep
inferior Courts and tribunals within the bounds of their authority and
to see that they do the duty expected or required of them in a legal
manner. The High Court is not vested with any unlimited prerogative
to correct all kinds of hardship or wrong decisions made within the
limits of the jurisdiction of the subordinate Courts or tribunals.
Exercise of this power and interfering with the orders of the Courts or
tribunals is restricted to cases of serious dereliction of duty and
flagrant violation of fundamental principles of law or justice, where if
the High Court does not interfere, a grave injustice remains
uncorrected. It is also well settled that the High Court while acting
under this Article cannot exercise its power as an appellate Court or
substitute its own judgment in place of that of the subordinate Court
to correct an error, which is not apparent on the face of the record.
The High Court can set aside or ignore the findings of facts of an
inferior Court or tribunal, if there is no evidence at all to justify or the
finding is so perverse, that no reasonable person can possibly come
to such a conclusion, which the Court or tribunal has come to."
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(emphasis supplied).
Thus, in view of aforesaid facts and circumstance of the
present case and having considered ratio of aforesaid
decisions, I am of the view that order impugned does not
suffers from any error much less any gross error of law and
or jurisdictional error.
CONCLUSION
13. The upshot of the aforesaid discussion, observations,
and reasons lead to only conclusion that there is no merit in
present writ application, thereby no interference requires of
this Court in the impugned order law having not found any
error committed by appellate Court while not condoning
delay of 4 years and 10 months in filing appeal by defendant
as defendant was negligent in filing such appeal.
14. So, keeping in mind the aforesaid ratio laid down by the
Hon'ble Supreme Court of India in its various decisions so
discussed herein above and while exercising the power
under Article 227 of the Constitution of India, considering
ratio of Garment Craft (Supra), this Court does not find any
merit in the present petition and the present petition
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requires to be dismissed. Hence, the same is hereby
DISMISSED. No order as to cost.
(MAULIK J.SHELAT,J)
SALIM/
