Gujarat High Court
Mahmad Ibrahim Hingora vs State Of Gujarat on 25 August, 2025
NEUTRAL CITATION
C/SCA/11724/2025 JUDGMENT DATED: 25/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11724 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 11733 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 11777 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 11802 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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MAHMAD IBRAHIM HINGORA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HARSHIT S BHATT(12874) for the Petitioner(s) No. 1
MR SHAILESH DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/08/2025
COMMON ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government
Pleader Mr. Shailesh Desai waives service of notice of the
Rule for the respondents.
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2. With the consent of the learned Advocates appearing for the
respective parties, the matter is taken up for hearing. As far
as possible, parties would be referred as per their original
position in the suit.
3. Heard learned Advocate Mr. Harshit S. Bhatt for the
petitioner and learned Assistant Government Pleader Mr.
Shailesh Desai for the respondents.
4. As such, all these bench of writ applications, filed under
Article 227 of the Constitution of India by the original
plaintiffs, who aggrieved and dissatisfied with the impugned
order passed by the Appellate Court in each case, whereby it
has condoned the delay of the respondent-State while filing
Regular Civil Appeal in each case with cost.
5. After arguing for some time, learned Advocate Mr. Bhatt,
under the instructions of his client, does not invite reasons so
far as the reasons assigned by the Appellate Court while
condoning the delay, but restricting his argument to the fact
that the costs which has been awarded of Rs.5,000/- in each
case, while condoning the delay around 820 days could be
too meager the costs.
5.1. According to learned Advocate Mr. Bhatt, considering the
entire set of facts and circumstances of the case, inasmuch as
the respondents herein have never appeared and contested
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the suit before the Trial Court, whereby an ex parte decree
came to be passed. It is submitted that there was complete
lack of communication between the respondents vis-a-vis the
Government Pleader Office of Bhuj and due to such, sufferer
is the petitioners only. It is further submitted that even after
securing the decree, plaintiffs will have to face the appeal
proceedings because of the negligent act of the respondents,
for which each plaintiff should be duly compensated by
adequately granting cost.
5.2. So, making the above submissions, learned Advocate Mr.
Bhatt would request that this Court should at least increase
the costs which has been awarded by the Appellate Court
while condoning the delay, which meet with the ends of
justice.
6. Per Contra, learned AGP Mr. Desai, at the outset, stick to the
fact that due to less number of assistant government
pleaders in the district of Kutch, more particularly in at Civil
Court, Naliya, having no assistant government pleader, suit
could not have been defended by the respondent-State.
6.1. Nonetheless, learned AGP Mr. Desai would further submit
that on getting knowledge about the passing of the impugned
judgment and decree by the Trial Court, vide letter dated
24th April 2023 and 5th June 2023, respondents have
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requested the Government Leader's Office at Bhuj-Kutch to
file an appeal, but due to less number of Assistant
Government Pleaders, it could not be filed for little long time,
but there was no malafide intention on the part of the
respondents not to file the appeal. He has shown total
number of Assistant Government Pleader appointed @ Bhuj
which appears too less vis-à-vis huge area of District-Kutch.
6.2. At last, learned AGP Mr. Desai would request this Court not
to interfere with the order of costs, but left to the discretion
of the Court to pass an appropriate order so far as quantum
of costs so awarded by the Appellate Court.
7. Having heard the learned advocates appearing for the
respective parties, prima facie, it appears that despite
service of notice upon the respondents, they chosen not to
appear, thereby, Trial Court passed ex parte judgment and
decree. According to some of the observations so made by
Appellate Court and so also it is case of the respondents that
the land is very precious land and the right of the
respondents would have been affected, if delay in filing the
appeal, if not condoned. It is also taken note of the fact that
there are less number of Assistant Government Pleader @
Bhuj-Kutch. So, considering the totality of the facts and
circumstances, the Appellate Court exercised its positive
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discretion, thereby condoned the delay in filing the appeal.
As such, the petitioners are not inviting any reasons so far as
ultimate conclusion of condoning the delay by the Appellate
Court is concerned, this Court not further discussed anything
on it.
8. Nevertheless, learned Advocate Mr. Bhatt restricted his
arguments qua the costs which has been awarded by the
Appellate Court while considering the delay is too less.
According to my view, considering the fact that there was
some lapses on the part of respondent-State in prosecuting
the legal remedy and due to any reasons, wherein, no blame
can be pointed out to the petitioner for pursuing his legal
remedy i.e. filing the civil suit and secured the decree, now,
the appeal proceedings are required to be defended by them,
for which they are required to be reasonably compensated in
terms of money.
9. In light of the aforesaid facts and circumstances, reasons and
considering the nature of controversy involved in the matter
and so also, there is no specific reasons assigned by the
Appellate Court while awarding the cost of Rs.5000/-, this
Court deem it appropriate to enhance such amount of costs
to Rs.15,000/- instead of Rs. 5,000/ in each matter. According
to this Court, such amount would be a reasonable costs
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which can compensate each petitioners/plaintiffs in terms of
money, thereby they can effectively defend the appeal
proceedings instituted by the respondents after lapse of more
than two years.
10. The respondent-State is hereby directed to pay an additional
sum of Rs.10,000/- to each of the petitioners/plaintiffs to be
paid, on or before 30th September, 2025. Such amount either
be paid directly to each plaintiff in their respective bank
account or to deposit with Appellate Court concern but same
shall have to be done on or before 30th September, 2025.
Once, such additional costs will be paid/deposited by the
respondent-State, the Appellate Court shall register the each
appeal and thereafter decide it in accordance with law as
early as possible. In a case where, such additional cost will
be deposited with Appellate Court, same shall be
paid/credited to each plaintiff on proper verification albeit, in
accordance with law.
11. At last, it has been drawn attention of this court by the
learned advocate Mr. Bhatt that while condoning the delay,
the Appellate Court has touched upon the merits of the
matter, which it could not have done so. The argument
canvased by learned advocate Mr. Bhatt requires some
consideration, inasmuch as it is settled legal position of law
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that while condoning the delay, the court should not touch
upon the merits of the matter.
12. Thus, in view of the aforesaid, the Appellate Court shall not
be influenced by its any of the observations so made while
condoning the delay and shall decide the lis between the
parties strictly in accordance with law.
13. Accordingly, the impugned orders passed by Appellate Court
in each matter is modify to the aforesaid extent i.e. costs
enhanced to Rs. 15,000/ instead of Rs. 5,000/. Consequently,
all these impugned writ applications are partly allowed to the
aforesaid extent. Rule is made absolute accordingly.
(MAULIK J.SHELAT,J)
Nilesh
