Gujarat High Court

Ravindra Murlidhar Bhambhre vs Lhs Of Decd. Aataji Jenaji Thakor on 5 February, 2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 207 of 2025

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-

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                                   Approved for Reporting                Yes           No
                                                                          ✓
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                                            RAVINDRA MURLIDHAR BHAMBHRE
                                                         Versus
                                        LHS OF DECD. AATAJI JENAJI THAKOR & ORS.
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                      Appearance:
                      MR DAKSHESH MEHTA(2430) for the Petitioner(s) No. 1
                      MR. RUSHANG D MEHTA(6989) for the Petitioner(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                     Date : 05/02/2025

                                                     ORAL JUDGMENT

1. The present petition is filed under Article 227 of the

Constitution of India, seeking the following reliefs:-

"A. The Hon'ble Court be pleased to admit and allow this petition;

B. The Hon'ble Court be pleased to issue appropriate writ, order or direction by quashing and setting aside the impugned order dated 17.09.2024 passed by the Ld. 4th Additional Civil Judge, Gandhinagar rejecting Civil Misc. Application No.81 of 2021 filed by the petitioner for condonation of delay of 1244 days in Restoration Application in Special Civil Suit No.300/2011 at Annexure-A to this petition and further be pleased to direct the Ld. 4th Additional Civil Judge, Gandhinagar to conduct the Special Civil Suit No.300/2011 from the stage where it is conducted after restoring to its original position;

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C. Pending admission, hearing and final disposal of this petition, be pleased to stay the execution, implementation and operation of the impugned order dated 17.09.2024 passed by the Ld. 4th Additional Civil Judge, Gandhinagar rejecting Civil Misc. Application No.81 of 2021 filed by the petitioner for condonation of delay of 1244 days in Restoration Application in Special Civil Suit No.300/2011 at Annexure-A to this petition, in the interest of justice;

D. Ad-interim relief in terms of Para-C be above;

E. Be pleased to award the cost of this petition;

F. Be pleased to grant any other relief/s as may deem fit proper, in the interest of justice."

2. As far as possible, the parties will be referred to as per

their original position in the suit proceedings.

3. The short facts, which are necessary to resolve the

controversy, read as under:

3.1 The petitioner herein happens to be the plaintiff

having filed Special Civil Suit No.300 of 2011 against the

respondents-defendants. The suit was filed before the Principal

Senior Civil Judge, Gandhinagar, through one Power of

Attorney Holder, namely Rajnibhai Rushitkumar Trivedi.

3.2 The suit was filed on 02.09.2011, wherein the plaintiff

has prayed for specific performance of an agreement to sell

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executed by the predecessor of Defendant No.1 on 02.12.1997

in favour of the plaintiff, and also sought cancellation of a

registered sale deed executed by the predecessor of Defendant

No.1 in favour of Defendant Nos.2 and 3 on 04.12.1997.

Additionally, the plaintiff prayed for the cancellation of the

sale deed dated 11.07.2003 executed by Defendant Nos.2 and 3

in favour of Defendant Nos.4 and 5. Both the sale deeds were

registered before the Sub-Registrar Office at Gandhinagar.

3.3 It appears that issues were framed on 10.04.2017, but

neither the learned advocate for the petitioner-plaintiff nor the

plaintiff remained present or submitted their evidence, despite

opportunities being given to them, the trial court, vide its

order dated 02.01.2018, dismissed the suit for default.

3.4 The plaintiff appears to have filed a restoration

application under Order IX Rule 9 of the Code of Civil

Procedure, 1908 (hereinafter referred to as "the Code, 1908")

on 09.08.2021. As there was a huge delay of 1244 days in

filing such an application, a separate delay application was

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filed by the plaintiff as Civil Miscellaneous Application no.81

of 2021 (hereinafter referred to as "the impugned application").

3.5 It appears that the impugned application was opposed

by the defendants by filing their replies at Exhibits 19 and 30.

3.6 After hearing the parties at length and examining the

issues involved in the matter, vide impugned judgment and

order dated 17.09.2024, the trial court rejected the impugned

application.

4. Being aggrieved and dissatisfied with the impugned

judgment and order dated 17.09.2024 passed by the 4th

Additional Civil Judge, Gandhinagar in Civil Misc. Application

No.81 of 2021, the present petition is filed under Article 227

of the Constitution of India.

SUBMISSION OF THE APPELLANT

5. Learned Advocate Mr. R.D. Mehta, appearing for the

petitioner, would submit that due to negligence on the part of

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the lawyer of the petitioner, the suit came to be dismissed for

default, and the plaintiff was not having any knowledge about

the same at the relevant time. Therefore, he could not file an

appropriate application for restoration.

5.1 He would further submit that the suit proceedings

were conducted by his Power of Attorney Holder, who was

looking after the legal proceedings on behalf of the plaintiff.

Since the plaintiff had not received any information from his

Power of Attorney Holder, he could not initiate an appropriate

action after the dismissal of the suit, including filing the

restoration application.

5.2 He would further submit that the grounds shown in

the impugned application would constitute sufficient cause, and

the trial court ought to have accepted the application. At best,

some reasonable costs could have been imposed upon the

plaintiff, and the delay could have been condoned.

5.3 He would further submit that it is true that there is no

whisper in the impugned application about the handling of the

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suit by the Power of Attorney Holder, 02.12.1997 but in fact,

it was handled through the Power of Attorney, which is so

mentioned in the present petition.

5.4 He would further submit that due to the COVID-19

situation and the plaintiff being unwell, he went to his native

District - Nasik, State of Maharashtra, and because of this

reason, no immediate steps were taken by the plaintiff to get

his suit restored back on file. He would further submit that

there is no mala fide intention on the part of the plaintiff in

not filing the restoration application within the stipulated time.

5.5 He would only request this Court to condone the delay

by imposing costs, thereby compensating the respondents. To

buttress his argument, he would rely upon the following

decisions passed by this Court:-

(i) Nevilkumar Mulchand Patel vs. Lallubhai Bhulabhai

Ahir in Special Civil Application No.16237 of 2016.

(ii) M/s Rajlaxi Infra vs. Ramubhai Prabhubhai Patel in

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Special Civil Application No.1737 of 2020.

(iii) Purva Rakesh Patel Vs. Parmar Abhesinh

Chimanbhai and 3 other(s) in Special Civil Application

No.7038 of 2018.

(iv) Baraman (Trivedi) Natvarlal Sukharam vs. Rabari

(Rajiya) Jamabhai Haribhai in Special Civil Application

No.23018 of 2019.

(v) Mohanlal Jivrajbhai vs. Jayantilal Jivrajbhai in

Special Civil Application No.12686 of 2014.

(vi) Oritental Insurance Co. Ltd. vs. Adani Enterprises

Ltd. In Special Civil Application No.12544 of 2018.

(vii) Chandrakant Haribhai Panchal and Ors. Vs.

Vasanstbahi Natvarlal Shah and Ors. in Civil Revision

Application No.428 of 2004.

5.6 Making the above submission, he has requested this

Court to allow the present petition.

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6. No other and further submissions being made by learned

advocate for the petitioner.

ANALYSIS

7. Before adverting to the whole issue germane in the

present petition, this Court would like to remind itself and

would like to refer decision of the Hon'ble Supreme Court of

India in the case of Sameer Suresh Gupta TR PA Holder vs.

Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein

the law has been summarized thereby the scope of the power

of the High Court while exercising its power under Article 227

of the Constitution of India has been elaborated. The relevant

observation of the aforesaid judgment reads as under:-

"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:

(1) Amendment by Act No. 46 of 1999 with effect from 01-

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07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably

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possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have

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made in the facts and circumstances of the case.

7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49)

"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.

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(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration

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of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."

8. It is also apt to reply upon the decision 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

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reappreciate, reweigh the evidence or facts upon which the determination under 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

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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."

9. At the outset, it is required to be noted here that what

has been stated in the present petition and in the impugned

application is not similar as in the impugned application, there

is no whisper that the suit being conducted by the Power of

Attorney Holder of the petitioner. Whereas, it is clearly

mentioned in the present petition that suit was filed and look

after by the Power of Attorney Holder of the petitioner.

9.1 It appears that the suit might have been presented by

the Power of Attorney Holder of the plaintiff, but in the

absence of any further details, it would be difficult for this

Court to accept the averment made in the petition and thereby

to accept the argument of the learned advocate for the

petitioner that due to negligence of the Power of Attorney

Holder of the petitioner, he could not get the details of the

dismissal of the suit at the relevant point of time.

9.2 It requires to be considered that when the plaintiff

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filed the restoration application and the impugned application

on his own, wherein there is no whisper of the suit being

conducted through the Power of Attorney Holder, a new fact

sought to be surfaced by the petitioner in the present petition

cannot be allowed to be taken into account. Rather, it amounts

to misleading the Court by the petitioner. If it is so, in view

of the decision of the Hon'ble Supreme Court of India in the

case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon

Medium Project, (2018) 7 SCC 448, the impugned application

requires to be rejected on the grounds of suppression and

misleading the Court, wherein it has been held as under:-

"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

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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. 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

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to condone the delay rests with the court in which the application was filed beyond time and decide whether there is sufficient cause for 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 ."

10. Be that as it may, when this Court has gone through the

impugned application as well as examined the impugned order,

it appears to this Court that the plaintiff remained totally

negligent in conducting the suit, either through the Power of

Attorney Holder or himself. The suit was filed in the year 2011

and issues were framed in the year, 2017, but till the dismissal

of the suit in the year, 2018, the plaintiff did not submit his

evidence or proceed with the suit.

10.1 Such an approach on the part of the plaintiff

constitutes negligence and callousness in conducting the suit in

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the year 2011, seeking declaration and performance of an

agreement to sell allegedly executed in his favour on

02.12.1997.

10.2 The trial court correctly observed in the impugned

order that the plaintiff did not state the correct date on which

he came to know about the order of dismissal of the suit. The

impugned application bereft of any particulars except either

blaming his advocate for not informing him about the dismissal

and stated further that he went to his native place at Nasik

where he fell ill. If the plaintiff was unwell and went to his

native place, he could have easily submitted medical evidence

in support of his plea in the impugned application. However,

nothing was submitted with the impugned application or the

present petition to substantiate the claim.

10.3 The plaintiff cannot blame his lawyer for not

informing him about the outcome of his suit because it was

the plaintiff's duty, being a party to the suit, to stay in touch

with his advocate, which he could have done even though he

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alleged to have been moved to his native place.

10.4 It is apt to rely upon the decision of Honourable

Supreme Court of India in a case of Rajneesh Kumar & Anr V/

S 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 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

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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)

10.5 At this stage, it is also profitable to rely upon the

decision of this Court in the case of Samusunisha Begaum W/

o Dr Nasarullahkhan DhanianiVishnukumar Ambelal Patel

reported in 2012 (3) GLR 2565; 2012 (0) AIJEL-HC 226913,

wherein (Honourable Justice J. B. Pardiwala, his lordship then

was) held as under:-

"24. In the present case, it is undisputed that the suit was preferred in the year 1987. The issues in the suit were framed by the Court on 30/9/1995 and the first date of hearing after framing of issues was 29/11/1995. From the year 1995 to 1999, there was no progress in the suit. On 20/9/1999, the Civil Court in the absence of the plaintiff as well as his Advocate, dismissed the suit for non prosecution. From 20/9/1999 the original plaintiff did not do anything till he passed away on 9/6/2004. I am at a loss to fathom that not even once in six years the original plaintiff thought fit to inquire with his Advocate as regards the status of the civil suit and its progress even assuming that the original plaintiff and his family was not in India and had migrated to U.S.A. If the original plaintiff was so much keen to pursue the suit with seriousness then probably before leaving for U.S.A. he could have even executed a power of attorney in favour of any person,

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who could have proceeded with the suit but even that was not done. The fact that till 9/6/2004 i.e. till the date the original plaintiff passed away, he did not even bother to inquire once with his Advocate about the progress and status of the suit, itself goes to show that he was not at all serious to go ahead with the suit. Not only this but even thereafter the respondents as legal heirs of the original plaintiff preferred an application almost after a period of ten months from the date of demise of the original plaintiff.

25. Under such circumstances, the Trial Court committed a serious error in condoning delay on the ground that the Advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a 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 litigan, 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. I regret to state that in the present case, learned Advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an Advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an Advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an Advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice would condone the delay. Affidavit of an Advocate may come on record in the rarest of rare circumstances and not as a matter of course. Let me assume for a moment that in the present case, concerned Advocate of the original plaintiff could not remain present on 20/9/1999 the day on which the Trial Court dismissed the suit for non prosecution and thereafter he was not able to keep a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once atleast with his Advocate as regards the status of the suit- This could have been

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done even if the original plaintiff and his family was in U.S.A. I do not blame the original plaintiff in going to U.S.A. but being a litigant in the Court of Law he is expected to keep a close watch on the proceedings as well as on the status of such proceedings. After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non prosecutio and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned. There is one more reason why I am very serious in commenting on the practice of Advocates filing affidavit. There is a general impression in the mind of the litigants that if a lawyer would file an affidavit saying that he was unable to attend the Court or because of his negligence the suit or appeal came to be dismissed then the Court would very willingly accept such explanation and condone the delay. This impression needs to be eradicated. Advocates at time forget that in the zeal to help the client by filing such affidavit they would land up in difficulty if a litigant would file proceedings for compensation on the ground of deficiency in service.

26. At this stage, I deem fit and proper to quote para 8 of the Supreme Court decision in case of Salil Dutta V/s. T. M. & M. C. Private Ltd. reported in (1993) 2 SCC 185.

["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 engage him. It is true that in certain situations, the Court may, in the interest of justice, set aside 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 no such absolute rule that a party can disown its Advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq [AIR 1981 SC 1400] must 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

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know where their interest lies. It is evident that when their applications were not deposed of before taking up the suit for final hearing they felt piqued and refused to appear before the Court. May be, it was part of their delaying tactics as alleged by the plaintiff. Maybe 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."]

10.6 So, in the present case when the plaintiff himself

remained indolent for years together and did not bother to get

the status of the suit by contacting his lawyer after it was filed

in year, 2011, no fault can be found with anyone else except

the plaintiff.

10.7 As such, in view of the ratio of aforesaid decisions

which is binding to this Court, and considering the facts at

hand, no fault can be found with the trial court while

rejecting the impugned application.

10.8 Learned Advocate Mr. Mehta has cited several

decisions passed by the Coordinate Bench of this Court,

wherein in the peculiar facts and circumstances of the case,

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the delay was condoned by imposing costs. It is required to be

noted that in none of the decisions cited by Learned Advocate

Mr. Mehta, it was held that even if the applicant remained

negligent in filing the restoration application, causing a huge

delay like in the present case, the Court can condone the delay

by imposing costs. Each case has its own peculiar facts and

circumstances, and if no negligence is found on the part of the

applicant, by imposing appropriate costs, this Court might have

condoned the delay in those cases. Be that as it may, in view

of said binding decisions, directly applicable to the facts of

case, decisions so cited by learned advocate Mr. Mehta would

not be applicable to facts the case.

10.9 Now, to further appreciate the issue germane in the

impugned application, when the Court found the present

petitioner-plaintiff negligent in pursuing his suit as well as

remaining silent for a long time after dismissal of the suit for

default, even in such facts and circumstances, can this Court

condone the delay by imposing costs? The answer to such a

question would be emphatically "No."

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10.10 It is apposite to refer to and rely upon a 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:

"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

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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 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."

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(Emphasis supplied)

10.11 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 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

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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."

10.12 It is also profitable to rely upon the decision of the

Hon'ble Supreme 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

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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, in view of the aforesaid authorities pronouncements

by honourable Supreme Court of India on the issue at hand, 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 not imposing any conditions including costs.

CONCLUSION

12. The upshot of the aforesaid discussion, observations, and

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