Gujarat High Court
Aiyubbhai Ajitkhan Sipai vs Kanjibhai Dhanjibhai Ilariya on 25 August, 2025
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C/SCA/6586/2025 JUDGMENT DATED: 25/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6586 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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AIYUBBHAI AJITKHAN SIPAI & ORS.
Versus
KANJIBHAI DHANJIBHAI ILARIYA & ORS.
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Appearance:
MR AFTABHUSEN ANSARI(5320) for the Petitioner(s) No. 1,2,3,4,5,6
MR PARESH A. PATEL(5456) for the Respondent(s) No. 4,5,6
NOTICE SERVED for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/08/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. Paresh
A. Patel waives service of notice of the Rule for
respondent Nos.4 to 6. Though served, none appears for
respondent Nos.1 to 3. With the consent of learned
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advocates of respective parties, matter is take up for
hearing.
2. Heard learned Ms. Helly Makwana appearing on behalf
of learned Advocate Mr.Aftabhusen Ansari for the
petitioners and learned Advocate Mr. Paresh A. Patel for
the respondent Nos.4 to 6.
3. The present writ application is filed under Article 227 of
the Constitution of India, seeking the following reliefs:
"a) To admit and allow this writ Petition;
b) YOUR LORDSHIPS may kindly be pleased to issue a writ of
certiorari or any other appropriate writ, order or direction in the
nature of certiorari to quash and set aside the Order dated
09.12.2024, passed by the Learned 5th Additional Civil Judge,
Palanpur, rejecting Civil Miscellaneous Application No. 31/2023
for condonation of delay, in the interest of justice;
c) YOUR LORDSHIPS may kindly be pleased to direct the
Learned 5th Additional Civil Judge, Palanpur to restore Regular
Civil Suit No. 15/2019 and proceed with adjudication on merits.
d) YOUR LORDSHIPS may kindly be pleased to grant an interim
relief, restraining the respondents from transferring, alienating,
or making any permanent changes to the disputed land pending
final disposal of this petition.
e) Be pleased to grant any other and further reliefs as this
Hon'ble Court may deem fit in the interest of justice."
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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 APPEARS TO BE
THAT:
5.1. The petitioners herein are the original plaintiffs whereas
the respondents are the original defendants of the
Regular Civil Suit No.15 of 2019, filed by the petitioners,
came to be dismissed for non-prosecution on 25th
November, 2021. The restoration application came to be
filed on 1st July, 2023, wherein there was a delay of
around one year, six months and five days in filing such
restoration application under Order 9, Rule 9 of the
Code of Civil Procedure, 1908 (hereinafter referred to as
"C.P.C.").
5.2. After hearing the parties, the Trial Court has not
condoned such delay, thereby rejected the impugned
application. Hence, the present application.
6. SUBMISSIONS OF PETITIONERS-PLAINTIFFS:
6.1. Learned Advocate Ms. Makwana would submit that the
Trial Court has taken very hyper-technical approach,
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thereby it has not condoned the delay in filing
restoration application, which requires to be condoned
by this Court.
6.2. Learned Advocate Ms. Makwana would further submit
that as such there was no mala fide intention on the part
of the petitioners not to file the restoration application
within stipulated time, but the reasons set out in the
delay application, they could not file restoration
application in time. It is submitted that due to the
COVID-19 situation and as such petitioner No.1, who is
elder of family members of petitioners, was looking after
the affairs of the civil suit was fallen ill and petitioner
No.2 was working in ST Corporation, could not look after
and get the updates of the same suit, which resulted into
dismissal of the suit for default.
6.3. Learned Advocate Ms. Makwana would further submit
that the suit was filed through a lawyer who abruptly
withdrawn his appearance from the suit and the same
was not within their knowledge. But, it is true that notice
came to be issued by the Trial Court about such
withdrawal of appearance by the Advocate concerned,
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but time was too short to engage another lawyer and to
appear and defend the suit and between, the suit got
dismissed for default.
6.4. Learned Advocate Ms. Makwana would further submit
that as such, prior to passing of the order of dismissal of
the suit, the respondents herein have preferred an
application below Exhibit 36 on 12th November, 2021,
filed under Order 9, Rule 8 of the C.P.C., but such
application was never served upon the petitioners and to
that extent, there was a violation of the principle of
natural justice which was unnoticed by the Trial Court.
6.5. Learned Advocate Ms. Makwana would further submit
that as per the settled legal position of law while
condoning the delay, a liberal approach requires to be
adopted by the Trial Court and unless there is a gross
negligence, mala fide, dilatory tactics and/or like act
committed by applicants, in other cases, even by
imposing conditions that to of costs, delay requires to be
condoned to advance justice to the parties.
6.6. Making the above submission, learned Advocate Ms.
Makwana would request this Court to allow the present
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writ application.
7. SUBMISSIONS OF THE RESPONDENTS-
DEFENDANTS:
7.1. Learned Advocate Mr. Patel would submit that as such,
there is no error, much less any gross error of law,
committed by the Trial Court while not condoning the
delay in filing restoration application. It is submitted that
there is a gross negligence on the part of the plaintiffs
not to appear in the suit, which resulted into dismissal of
the suit for non-prosecution.
7.2. Learned Advocate Mr. Patel would submit that after
withdrawal of appearance of lawyer of plaintiffs, a notice
came to be served upon plaintiffs and thereafter, on two
dates, they have chosen not to appear. Accordingly, the
Trial Court has dismissed the suit, whereby no fault can
be found with the Trial Court.
7.3. Learned Advocate Mr. Patel would submit that COVID-
19 period got over latest by June-2022 and as such, the
present delay application with the restoration
application came to be filed only in the month of June-
2023 itself shows that the plaintiffs are not vigilant
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enough to file and prosecute their legal remedy available
in law. It is submitted that considering the overall facts
and circumstances of the case and conduct of the
plaintiffs, no leniency should be shown to plaintiffs and
thereby, this Court may not exercise its supervisory
jurisdiction in favour of the petitioners.
7.4. Learned Advocate Mr. Patel would further submit that
there are as much as six plaintiffs, thereby merely
because plaintiff Nos.1 and/or 2 are either ill or engaged
in service would be no ground to file a restoration
application after this much period. It is submitted that
there is no sufficient cause made out by the applicants-
plaintiffs while filing the delay application in the
restoration application.
7.5. So, making the above submissions, learned Advocate Mr.
Patel would request this Court not to entertain the
present writ application.
8. Heard learned Advocates appearing for the respective
parties at length.
9. No other and further submissions are being made by the
learned advocates.
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10. At the outset, this Court is required to consider the fact
that whether the restoration application filed by the
petitioners-plaintiffs after the period of limitation,
whereby, they have been actually prevented by any
sufficient cause or not?.
11. The facts which are narrated hereinabove are not in
dispute. It is true that the learned Advocate who was
engaged by the plaintiffs have been withdrawn in the
midst of suit proceedings in COVID-19 period. It is also
true that the Trial Court had issued notices upon the
plaintiffs, which were served upon them after
withdrawal of appearance by the Advocates. But, at the
same time that such notice was issued below Exhibit 35,
which was served upon the plaintiffs and thereafter,
three dates were given in the suit proceedings i.e. 29th
September, 2021, 12th October, 2021 and 29th October,
2021 and on such dates, the plaintiffs could not remain
present. Such period was 2 nd phase of COVID-19 period.
The explanation coming forth on the side of the plaintiffs
would be that plaintiff No.1 who was looking after the
affairs of the suit was ill and as such, plaintiff No.2 was
engaged in the ST Corporation, thereby unable to attend
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the suit proceedings after withdrawal of the appearance
of the Advocate concerned.
12. These aforesaid facts which are stated by the plaintiffs in
the delay application is remained uncontroverted by the
opponents-defendants, inasmuch as no contrary
evidence came on record from their side. Further, it
appears that an application below Exhibit 36 came to be
filed by original defendants under Order 9, Rule 8 of the
C.P.C. in the suit, whereby requested the Trial Court to
dismiss the suit for non-prosecution, which was never
served upon the plaintiffs and to that extent, according
to this Court, a principle of natural justice was violated.
13. The Trial Court, after taking note of such application and
also taking note of the facts that on previous three dates,
despite service of notice upon the plaintiffs, they were
not appeared, dismissed the suit for default. The factum
of illness of plaintiff No.1 and plaintiff No.2 having
engaged himself in the job, thereby not present before
the Trial Court to defend the suit proceedings is
concerned, it constitutes a sufficient cause which, of
course, prevented them not to appear and file the
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restoration application well within the time. It is also not
out of place to mention that happening of dismissal of
the suit during the COVID-19 period. It was a time that
everyone was first looking after the safety of oneself
rather than focusing on the legal proceedings instituted
by them. This Court cannot oblivious of such facts while
examining the delay application.
14. It is now by well-settled legal position of law that while
adjudicating the delay application, the Court is required
to take a liberal approach and cause set out in the
application is required to be considered liberally rather
than taking a hyper technical approach. Unless, it has
been shown on record that there is a mala fide intention,
dilatory tactics, gross negligence or like act of the
applicants, ordinarily, if there is no serious prejudice
caused to the opponents, the court on suitable conditions
requires to condone the delay.
15. It is apposite to refer to and rely upon the decision of the
Honorable Supreme Court of India N Balakrishnan vs.
M. Krishnamurthy reported in (1998) 7 SCC 123, it
has been held as under:-
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"[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 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."
(emphasis supplied)
15.1. Likewise, in a case of Collector, Land Acquisition,
Anantnag V/s. MST Katiji reported in 1987 2 SCC
107, wherein it has been held thus :-
"1. Ordinarily a litigant does not stand to benefit by lodging an
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appeal late.
2. Refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice being
defeated. As against this when delay is condoned the highest that
can happen is that a cause would be decided on merits after
hearing the parties.
3. "Every day's delay must be explained" does not mean that a
pedantic approach should be made. Why not every hour's delay,
every second's delay? The doctrine must be applied in a rational
common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or
on account of culpable negligence, or on account of mala fides. A
litigant does not stand to benefit by resorting to delay. In fact he
runs a serious risk.
6. It must be grasped that judiciary is respected not on account of
its power to legalize injustice on technical grounds but because it is
capable of removing injustice and is expected to do so."
(emphasis supplied)
16. Considering the totality of the aforesaid facts and
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circumstances of the case and after appreciating the
submissions so canvassed by learned Advocates
appearing for the respective parties and so also after
going through the averments made in the impugned
delay application, I am fully satisfied that sufficient
cause has been made out by the applicants in the delay
application so filed in the restoration application.
17. This Court has already directed the petitioners to
deposit sum of Rs.30,000/- as probable cost to bring the
respondents here, which has been deposited by the
petitioners. So, respondents would be compensated in
terms of money while condoning delay. As respondents
Nos. 4 to 6 only appeared before this Court, they are
permitted to withdraw such amount of cost. The Registry
shall pay/credit such amount in the account of
respondent Nos. 4 to 6 only. At this stage, learned
Advocate Mr. Patel would request this Court that the
amount of Rs.30,000/- be credited only in the account of
respondent No.5. The Registry shall do the needful and
credit such amount of Rs.30,000/- with accrued interest,
if any, thereon in the account of respondent No.5 on
furnishing proper bank details of respondent No.5 by
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learned Advocate of the respondents.
CONCLUSION
18. In view of the foregoing reasons, the impugned order
dated 9th December, 2024, passed by the 5th Additional
Civil Judge, Palanpur, in Civil Miscellaneous Application
No. 31 of 2023, is hereby quashed and set aside.
Accordingly, the impugned delay application being Civil
Miscellaneous Application No. 31 of 2023, is hereby
allowed. The Trial Court shall now decide the restoration
application on its own merits and to decide it in
accordance with law.
19. Consequently, the present writ application deserves to
be allowed, which is hereby allowed. Rule made absolute
to the aforesaid extent.
(MAULIK J.SHELAT,J)
Nilesh
