[Cites 9, Cited by 0]
Gujarat High Court
Punjiben Rajabhai Bharda vs Heirs Of Decd Nagindas Devidas Shah on 5 December, 2025
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 5315 of
2024
In F/SECOND APPEAL NO. 29364 of 2024
==========================================================
PUNJIBEN RAJABHAI BHARDA & ORS.
Versus
HEIRS OF DECD NAGINDAS DEVIDAS SHAH & ORS.
==========================================================
Appearance:
MR ROHIT G MAKWANA(11413) for the Applicant(s) No. 1,2,3,4,5
MR YOGESHKUMAR A RATANPARA(7260) for the Applicant(s) No.
1,2,3,4,5
MR DEVDIP BRAHMBHATT(3490) for the Respondent(s) No. 2,3,4,5,6,7,8
MR. UTSAV H KHAMAR(14493) for the Respondent(s) No. 2,3,4,5,6,7,8
RULE SERVED for the Respondent(s) No. 1.1,1.2,1.3
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/12/2025
ORAL ORDER
1. By way of this petition under Section 5 of the Limitation Act,
1963, the unsuccessful defendant seeks to condone the delay of 456 days
caused in filing the Second Appeal against the concurrent judgment and
decree passed by the courts below, firstly dated 27.06.2015 in Regular
Civil Suit No.12 of 2010 passed by the learned Principal Civil Judge,
Maliya-Hatina decreeing the suit of the plaintiff, secondly, the judgment
and decree dated 03.04.2023 passed in Regular Civil Appeal No.3 of
2018 passed by the Additional District Judge, Veraval.
2.1 Heard learned advocate Mr.Ravi Gajjar appearing for the petitioner
who refers to para:4 of the petition and submitted that the applicant was
under reasonable impression that the learned advocate would advise him
to challenge the concurrent findings arrived at by the trial Court and the
first appellate Court by way of filing Second Appeal against the judgment
and order impugned in the Second Appeal and was under further
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
impression that the learned advocate would do needful. However, in the
recent past, the applicant came to know that it was miscommunicated by
learned advocate and then he realised that no Second Appeal has been
filed. Therefore, the delay has been caused.
2.2 It is further submitted that besides aforesaid difficulty, the
applicant also facing financial crunches as filing of Second Appeal incurs
huge litigation expenses. Therefore, he submitted that all these aspect
lead to delay of 1456 days in filing the Second Appeal.
2.3 It is further submitted that the Court should show lenient and
justice-oriented view and should not throw the petitioner out of the Court
without deciding substantial question arose between the parties. He would
further submit that by condoning the delay, the Court is permitting the
petitioner to agitate his case on merits. He further submits that Court may
impose appropriate cost in condoning the delay.
3.1 As regards the aforesaid submissions, learned advocate Mr.Utsav
Khamar for the respondent submits that in the application for condonation
of delay, para:4 is the only averment to explain yawning delay of 456
days. He would submit that the petitioner being miscommunicated is no
reason to condone the delay.
3.2 Referring to the recent decision reported in 2023 LiveLaw SC 69
in the case of Ajay Dabra vs. Pyare Ram & Ors. he would submit that the
petitioner was required to be vigilant for taking up his remedy and he
cannot rely upon the statement made by learned advocate. He would
further submit that there is no documentary evidence indicating for the
petitioner to submit that certain advice was passed by the learned
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
advocate as well as the petitioner was miscommunicated .
3.3 In view of the above, he would further submit that since the
application seeking condonation of delay is based on only para:4 of the
application, is unable to explain the inordinate delay, the present
application deserves to be dismissed.
3.4 Let refer Para:4 of the application to check whether it offers
sufficient explanation for condonation of the delay.
"4. It is submitted that the certified copy of the judgment was
received by the Ld.Advocate appearing for the applicant herein on
15.4.2023 and the advocate advised the applicant to challenge the
same before this Hon'ble Court. The applicant was under a
reasonable impression that the Ld.Advocate would do the needful
for challenging the impugned order and the Ld.Advocate was under
an impression that the applicant would do the needful and only
recently, when the applicant inquired about status of matter with
the advocate, this miscommunication was realized and further since
the applicant was facing financial crunch and he would be required
to incur huge expenses for the litigation expenses, the applicant was
trying to raise funds from the relatives to meet with the expenses
for preferring present appeal before this Hon'ble Court. Therefore,
there was some communication gap between the applicant and the
Ld. Advocate appearing for the applicant and also sue to financial
crunch, the period of limitation expired and delay of 456 days
occurred in filing the appeal. Since the delay in question is caused
on account of miscommunication, it is humbly prayed in the
interest of justice to condone the same."
4.1 For condonation of delay, two grounds are pleaded i.e. (i) that there
was miscommunication from learned advocate and (ii) that he was trying
to arrange funds for filing appeal before this Court. Insofar as ground of
miscommunication raised by the petitioner is concerned, it may be noted
that no supportive evidence has been produced on record and, therefore,
ground which is taken up for the sake of argument would not survive
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
even in a whisper.
4.2 As far as the ground that learned advocate has not properly
communicated advice to the petitioner is concerned, recently the Hon'ble
Supreme Court in a decision rendered in the case of Rajneesh Kumar and
Another vs. VedD Prakash reported in 2024 INSC 891 noted that it is
growing tendency on the part of the litigant to blame their lawyers
lawyers of negligence and carelessness in attending the proceedings
before the court. However, the Supreme Court held that negligence on the
part of learned advocate is now no ground to condone the delay and 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. Paras
10 and 11 of the judgment read thus:
"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.
11. In the aforesaid context,we may refer to a decision of this Court
in the case of Salil Dutta v. T.M. & M.C. Private Ltd. reported in
(1993) 2 SCC 185, wherein this Court observed as under:
8. The advocate is the agent of the party. His acts and
statements, made within the limits of authority given to him, are
the acts and statements of the principal i.e. the party who engaged
him. It is true that in certain situations, the Court may, in the
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
interest of justice, set a side a dismissal order or an ex-parte
decree notwithstanding the negligence and/or misdemeanour of
the advocate where it finds that the client was an innocent litigant
but there is not such abso lute rule that a party can disown its
advocate at any time and seek relief. No such absolute immunity
can be recognised. Such an absolute rule would make the working
of the system extremely difficult. The observations made in Rafiq
must be understood in the facts and circumstances of that case and
cannot be understood as an absolute proposition. As we have
mentioned hereinabove, this was an on-going suit posted for final
hearing after a lapse of seven years of its institution. It was not a
second appeal filed by a villager residing away from the city,
where the Court is located. The defendant is also not a rustic
ignorant villager but a private limited company with its head-
office at Calcutta itself and managed by educated businessmen
who know where their interest lies. It is evident that when their
applications were not disposed of before taking up the suit for
final hewing they felt piqued and refused to appear before the
court. May be, it was part of their delaying tactics as alleged by
the plaintiff. May be not. But one thing is clear they 'chose to non-
cooperate with the court. Having adopted such a stand towards
the Court, the defendant has no right to ask its indulgence. Putting
the entire blame upon the advocate and trying to make it. out as if
they were totally unaware of the nature or significance of the
proceedings is a theory which cannot be accepted and ought not to
have been accepted." (Emphasis supplied)
4.3 Insofar as ground of petitioner being short of funds, the Supreme
Court in the case of Ajay Dabra vs. Pyare Ram & Ors. (supra) observed
that, if the petitioner is short of funds, or not having sufficient funds to
pay the Court fees, that would not be sufficient reason for condonation of
delay. The Supreme Court also observed that even it is presumed that
even if it is presumed for the sake of argument that appellant was sort of
funds at the relevant point of time and was not able to pay court fee,
nothing barred him from filing the appeal as there is provision under the
law for filing a defective appeal. Para:5 of the said judgment reads as
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
under:
"5. What we have here is a pure civil matter. An appeal has to be
filed within the stipulated period, prescribed under the law. Belated
appeals can only be condoned, when sufficient reason is shown
before the court for the delay. The appellant who seeks condonation
of delay therefore must explain the delay of each day. It is true that
the courts should not be pedantic in their approach while condoning
the delay, and explanation of each day's delay should not be taken
literally, but the fact remains that there must be a reasonable
explanation for the delay. In the present case, this delay has not been
explained to the satisfaction of the court. The only reason assigned
by the appellant for the delay of 254 days in filing the First Appeal
was that he was not having sufficient funds to pay the court fee! This
was not found to be a sufficient reason for the condonation of delay
as the appellant was an affluent businessman and a hotelier. In any
case, even it is presumed for the sake of argument that the appellant
was short of funds, at the relevant point of time and was not able to
pay court fee, nothing barred him from filing the appeal as there is
provision under the law for filing a defective appeal, i.e., an appeal
which is deficient as far as court fee is concerned, provided the court
fee is paid within the time given by the Court. We would refer to
Section 149 of Civil Procedure Code, 1908 which reads as under :-
"Section 149: Power to make up deficiency of Court Fees.-
Where the whole or any part of any fee prescribed for any
document by the law for the time being in force relating to
court fees has not been paid, the Court may, in its discretion,
at any stage, allow the person, by whom such fee is payable,
to pay the whole or part, as the case may be, of such court-
fee; and upon such payment the document, in respect of
which such fee is payable, shall have the same force and
effect as if such fee had been paid in the first instance."
It also needs to be emphasized that this Court as well as various
High Courts, have held that Section 149 CPC acts as an exception,
or even a proviso to Section 4 of 2Court Fees Act 18701. In terms of
Section 4, an appeal cannot be filed before a High Court without
court fee, if the same is prescribed. But this provision has to be read
along with Section 149 of CPC which we have referred above. A
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
short background to the incorporation of Section 149 in CPC would
explain this aspect."
4.4 In the present case, the petitioner, who claimed that she is short of
fund for preferring appeal, pleaded nothing except bare words without
any reference, instances or what attempt she has been done to secure
funds, at a times, what funds she had, how she was short of funds etc. All
these details are not recorded. They are factually missing.
4.5 Recently, Apex Court in the case of Shivamma (Dead) by Lrs. vs.
Karnataka Housing Board and Others reported in 2025 SCC OnLine
SC 1969 held that "question of limitation is not merely a technical
consideration. The rules of limitation are based on the principles of
sound public policy and principles of equity. We should not keep the
'Sword of Damocles' hanging over the head of the respondent for
indefinite period of time to be determined at the whims and fancies of the
appellants." (emphasis applied) . Relevant observations made in
paras:258 to 263 are reproduced herein under:
"258. The length of the delay is a relevant matter which the court
must take into consideration while considering whether the delay
should be condoned or not. From the tenor of the approach of the
respondents, it appears that they want to fix their own period of
limitation for instituting the proceedings for which law has
prescribed a period of limitation. Once it is held that a party has
lost his right to have the matter considered on merits because of
his own inaction for a long, it cannot be presumed to be non-
deliberate delay and in such circumstances of the case, it cannot
be heard to plead that the substantial justice deserves to be
preferred as against the technical considerations. While
considering the plea for condonation of delay, the court must not
start with the merits of the main matter. The court owes a duty to
first ascertain the bona fides of the explanation offered by the
party seeking condonation. It is only if the sufficient cause
assigned by the litigant and the opposition of the other side is
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
equally balanced that the court may bring into aid the merits of
the matter for the purpose of condoning the delay.
259. We are of the view that the question of limitation is not
merely a technical consideration. The rules of limitation are based
on the principles of sound public policy and principles of equity.
We should not keep the 'Sword of Damocles' hanging over the
head of the respondent for indefinite period of time to be
determined at the whims and fancies of the appellants.
260. From the above exposition of law, it is abundantly clear that
the High Court has erroneously condoned a massive delay of 3966
days on account of certain lapses at the administrative levels and
of there being no follow-ups in the proceedings, along with
finding certain merits in the case of the respondent no. 1 against
the maintainability of the suit of the appellant and that of the relief
molded by the First Appellate Court. We have no hesitation in
stating that such grounds are nowhere near to being "sufficient
cause" as per Section 5 of the 1963 Act. The High Court lost sight
of the fact that the precedents and authorities it relied upon by it
had delays of two-digits, or even that of single-digit, more
particularly the delay in those cases was supported by sufficient
cause. The present case, however, stands on a very different
footing, owing to such an enormous delay. Hence, we are not
inclined to accept the condonation of the delay by the High Court.
V. CONCLUSION
261. Thus, for the reasons aforesaid, the impugned order of the
High Court deserves to be set aside. Before we proceed to close
this judgment, we deem it appropriate to make it abundantly clear
that administrative lethargy and laxity can never stand as a
sufficient ground for condonation of delay, and we want to
convey an emphatic message to all the High Courts that delays
shall not be condoned on frivolous and superficial grounds, until a
proper case of sufficient cause is made out, wherein the State-
machinery is able to establish that it acted with bona fides and
remained vigilant all throughout. Procedure is a handmaid to
justice, as is famously said. But courts, and more particularly the
constitutional courts, ought not to obviate the procedure for a
litigating State agency, who also equally suffer the bars of
limitation from pursuing litigations due to its own lackadaisical
NEUTRAL CITATION
C/CA/5315/2024 ORDER DATED: 05/12/2025
undefined
attitude.
262. The High Courts ought not give a legitimizing effect to such
callous attitude of State authorities or its instrumentalities, and
should remain extra cautious, if the party seeking condonation of
delay is a State-authority. They should not become surrogates for
State laxity and lethargy. The constitutional courts ought to be
cognizant of the apathy and pangs of a private litigant. Litigants
cannot be placed in situations of perpetual litigations, wherein the
fruits of their decrees or favourable orders are frustrated at later
stages. We are at pains to reiterate this everlasting trend, and put
all the High Courts to notice, not to reopen matters with
inordinate delay, until sufficient cause exists, as by doing so the
courts only add insult to the injury, more particularly in appeals
under Section 100 of the CPC, wherein its jurisdiction is already
limited to questions of law.
263. Limitation periods are prescribed to maintain a sweeping
scope for the lis to attain for finality. More than the importance of
judicial time, what worries us is the plight of a litigant with
limited means, who is to contest against an enormous State, and
its elaborate and never- exhausting paraphernalia. Such litigations
deserve to be disposed of at the very threshold, because, say if a
party litigating against the State, for whatever reason, is unable to
contest the condonation of delay in appeal, unlike the present
case, it reopens the lis for another round of litigation, and leaves
such litigant listless yet again. As courts of conscience, it is our
obligation that we assure that a litigant is not sent from pillar to
post to seek justice"
4.6 Applying the aforesaid ratio, I see no reason to condone inordinate
and yawing delay of 456 days having not been explained by sufficient
cause.
5. Apropos, the application for condonation of delay stands dismiss.
In view of aforesaid decision, the Second Appeal sans registration.
Accordingly, Second Appeal is disposed off.
(J. C. DOSHI,J)
MISHRA AMIT V.
