Gujarat High Court
Patel Amrutlal Hargovandas vs Lhs Of Decd. Amrutlal Keshavlal on 11 February, 2025
NEUTRAL CITATION
C/CA/4796/2024 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY)
NO. 4796 of 2024
In
F/FIRST APPEAL NO. 25890 of 2024
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PATEL AMRUTLAL HARGOVANDAS
Versus
LHS OF DECD. AMRUTLAL KESHAVLAL & ORS.
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Appearance:
HARSH V GAJJAR(7828) for the Applicant(s) No. 1
MR BHAVESH BABARIYA(6788) for the Respondent(s) No. 2.1,2.2,3
RULE SERVED for the Respondent(s) No. 1.1,1.2,1.3,1.4
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 11/02/2025
ORAL ORDER
1. Heard Mr. Harsh V. Gajjar, learned advocate for the
applicant and Ms. Trusha Patel, learned Senior Advocate with
Ms. Jhanvi, learned advocate on record for the respondent.
2. The present application is filed seeking condonation of
delay of 210 days occurred in preferring the captioned appeal.
3. At the outset, learned advocate for the applicant has
referred to the averments made in the application and
submitted that the impugned order was pronounced on 9 th
November, 2023 whereby the suit of the present applicant -
original plaintiff was not entertained in light of Order-VII
Rule-11(a) (d) of the Code of Civil Procedure, 1908. It is
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C/CA/4796/2024 ORDER DATED: 11/02/2025
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submitted that the applicant rendered his voluntary services
as a helper/assistant in a temple and he is a senior citizen.
The applicant was facing financial crunch and was unable to
meet with the Court fees and other expenses. The attention of
this Court was invited to the additional affidavit, whereby the
circumstances faced by the applicant have been explained. In
support of the aforesaid contentions, it is further submitted
that when the funds were made managed the applicant had
immediately applied for certified copy on 2 nd July, 2024. The
certified copy of which was made available on 6 th August,
2024. The further time was consumed in seeking advice from
the learned advocate being engage to represent his case. It is
further submitted that necessary papers were supplied to the
learned advocate. By making aforesaid submissions, learned
advocate has submitted that all throughout, the applicant
intended to persue the appeal. However, because of the
circumstances beyond his control, he could not approach the
Court within the prescribed period of limitation. He has had
therefore, submitted that there was no malice or inaction or
negligence on the part of the applicant to not to approach in
appeal within the prescribed period of limitation.
3.1 The reliance was placed on the decision of the Hon'ble
Supreme Court in case of Raheem Shah and Another Vs.
Govind Singh and others reported in 2023 SCC OnLine SC
910 to contend that generally, the Court should take liberal
approach, more particularly when the parties were litigating
with regard to the right over immovable properties and
substantial rights were to be decided between the parties.
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4. Ms. Trusha K. Patel, learned senior advocate appearing
on behalf of the respondent has vehemently objected to the
aforesaid submissions made by the learned advocate for the
applicant. The attention of this Court was invited to the
averments made in the application. It was submitted that the
appeal arises out of the suit which was filed seeking specific
performance, wherein the plaintiffs are expected to
demonstrate their financial capacity to meet with the status of
purchasing the land agreed to be sold. It is submitted by the
learned advocate for the respondent that therefore the burden
was upon the applicant - original plaintiff to prove his
readiness and willingness to perform the part of his contract,
which also indicates the payment of the amount of
consideration being agreed. Whereas in the present
application, the only ground which is urged as is evident from
the averments made in the application is the financial crunch
which prevented him from approaching in appeal within the
stipulated period of limitation. She has therefore urged this
Court to record the aforesaid facts, which otherwise is
contradictory to what he could have demonstrated before the
trial Court.
5. Considering the submissions made by the learned
advocates for the respective parties and looking to the
explanation offered, this Court is of the view that the
applicant all throughout intended to pursue the proceedings.
Looking to the circumstances pointed-out more particularly
the fact that the applicant is a senior citizen and is tendering
his services as a helper in a temple. In absence of any
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contradictions being pointed-out to the aforesaid aspect, this
Court has reason to believe the aforesaid fact and the case of
the applicant of having faced financial constrains which did
not permit him to approach in appeal within the prescribed
period of limitation. The challenge is to the order passed on
an application preferred by the respondent under Order-VII
Rule-11 (a)(d) of the Code of Civil Procedure, the Court has
reason to believe that the suit has been rejected at the
threshold without offering any opportunity to lead the
evidence.
6. Considering the judgment of the Hon'le Supreme Court
in case of Raheem Shah and Another (supra), applying the
same in the facts of the case, which involves the dispute with
regard to specific performance of an immovable property and
the substantial rights being under consideration, this Court is
inclined to exercise its discretion, looking to the fact that
there is no malice or inaction on the part of the applicant.
7. Considering the overall aspect of the matter, the
explanation offered sufficient cause has been made-out to
consider the present application seeking condonation of delay.
The present application stands allowed. The delay caused in
preferring the captioned appeal is hereby condoned.
(NISHA M. THAKORE, J.)
AMAR RATHOD...
