Gujarat High Court
Chaganbhai Chinabhai Shingad vs Mamlatdar Una on 19 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15470 of 2024
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CHAGANBHAI CHINABHAI SHINGAD & ORS.
Versus
MAMLATDAR UNA & ORS.
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Appearance:
MR JIGAR D DAVE(6528) for the Petitioner(s) No. 1,2,3,4,5,6
MR BHARAT VYAS, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 19/02/2025
ORAL ORDER
1. Learned advocate Mr. S.P. Tamang seeks permission to
file his appearance on behalf of the petitioners. Permission
as sought for, is granted.
2. Heard learned advocate Mr. S. P. Tamang for the
petitioners and learned Assistant Government Pleader Mr.
Bharat Vyas for Respondent No.1.
3. The present petition is filed under Article 227 of the
Constitution of India seeking following relief :-
"A. This Hon'ble Court may be pleased to admit and allow the
present petition.
B. This Hon'ble Court may be pleased to quash and set aside the
order passed by the 3rd Additional District Judge, Una, in Civil
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Miscellaneous Application (Delay Condone Application) No. 12 of
2022 on dated 30-03-2024 and be pleased to allow the Application
and further be pleased to condone the delay in preferring the First
Appeal, in the interest of justice.
C. This Hon'ble Court may be pleased to pass any other and
further orders as deemed fit in the interest of justice."
Facts of the case.
4. The father of the petitioners was original plaintiff of
Regular Civil Suit No. 17 of 2014 filed by him before the
Principal Civil Judge, Una against the respondents, which was
dismissed on 18.02.2017 by allowing the application filed by
respondent Nos. 2/2, 2/3, 3/1 & 3/2 respectively (original
defendants) filed below Exh. 20 filed under Order VII rule 11
(d) of CPC.
4.1 The father of the petitioners died on 27.12.2016 and
the present petitioners were not aware about the filing of
the aforesaid suit by their father. When they have got the
papers of the suit, they have obtained the certified true
copies of the relevant papers of the case and thereafter, the
petitioners had filed an appeal under Section 96 before the
District Court, Una, wherein there was a delay of 5 yrs, 3
months and 25 days. So, they had filed delay application in
the appeal.
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4.2 After hearing the parties, the District Court has
rejected the delay application vide its order dated
30.03.2024, which is impugned in the present petition.
4.3 Being aggrieved and dissatisfied with the aforesaid
impugned order passed by the Appellate Court, the present
petition is filed.
5. Learned advocate Mr. Tamang for the petitioners
would submit that the petitioners are poor and illiterate
persons, who were not aware about the filing of the suit by
their father and after getting the information about filing of
such suit, they have moved the District Court by filing
Appeal.
5.1 Learned advocate Mr. Tamang for the petitioner would
further submit that considering the back ground of the
petitioners, a liberal approach ought to have been taken by
the District Court, whereby to condone the delay of 1825
days in filing appeal.
5.2 He would further submit that as per settled legal
position of law, whenever the Court is required to consider
the condonation of delay, the liberal approach requires to be
taken, thereby the Court can decide the matter on its merits.
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5.3 Learned advocate Mr. Tamang would further submit
that there is no mala-fide intention on the part of the
petitioners to file the appeal after more than five years from
dismissal of the suit but it was not within the personal
knowledge of filing of the suit and or its dismissal and when
they came to know, they have immediately preferred the
appeal.
5.4 Learned advocate for the petitioners would submit that
considering the averments made in the delay application,
the petitioners have successfully made out the sufficient
cause in filing appeal, which ought to have been accepted by
the District Court.
5.5 To buttress his argument, learned advocate for the
petitioners would rely upon the decisions of the Hon'ble
Apex Court in the case (I) Collector, Land Acquisition,
Anantnag and another Vs. Mst. Katiji and others reported
in AIR 1987 SC 1353 (ii) State of Nagaland Vs. Lipok Ao
and others reported in (2005) 3 SCC 752 (iii) N.
Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7
SCC 123.
5.6 Making the aforesaid submission, learned advocate for
the petitioners would request this Court to allow the present
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petition.
6. Per contra, learned Assistant Government Pleader Mr.
Bharat Vyas for the respondent -State that there is no error
committed by the District Court, Una while rejecting the
delay application filed by the petitioners.
6.1 Learned Assistant Government Pleader Mr. Vyas would
submit that the petitioners have failed to make out the case
for condonation of delay as the application lacks sufficient
cause and so called explanation is nothing but an excuse on
the part of the petitioners.
6.2 Learned Assistant Government Pleader would further
submit that whenever there is a long ordinate delay, the
Court is required to consider the conduct of the applicants as
well and if it is found that there is a negligence on the part of
the applicants- petitioners in pursuing the legal remedy,
irrespective of insufficient cause is made out, the Court may
not grant such inordinate delay which caused to the
negligence on the part of the applicants- petitioners.
Learned Assistant Government Pleader would request the
Court not to entertain the present petition.
7. No other and further submissions have been made by
the learned advocates for the respective parties.
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8. I have heard learned advocates for the respective
parties. After perusing the delay application as well as the
impugned order passed by the Appellate Court, it appears
that there is no sufficient cause made out by the applicants-
present petitioners in filing the appeal after about more
than Five years from the date of dismissal of the suit, which
was originally filed by the father of the petitioners.
8.1 The so called explanation which was submitted in the
delay application that after the death of their father, the
petitioners were unaware about the aforesaid suit as during
his life time, the father of the petitioners were never shared
the information about the suit, but certainly after about
more than five years from the death of his father, one fine
morning, they got papers of the aforesaid suit in their house.
8.2 Such an explanation which has been sought to be
stated in the delay application is hardly considered to be
sufficient cause. The averments made in the delay
application are nothing but an excuse on the part of the
petitioners to come out from rigor of period of limitation so
fixed under the law.
8.3 The conduct of the petitioners would tantamount to
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gross negligence on their part to pursue the legal remedy
which was available to them at the relevant point of time
after sad demise of their father.
8.4 It is well settled legal position of law that if the Court
found that there is negligence, gross negligence and
inordinate delay by the applicants in pursuing legal remedy
thereby seeking condonation of application, even if there is
sufficient cause is made out, the Court would not lean
towards such applicants by condoning the delay, which was
caused due to his own negligence.
8.5 At this stage, it is profitable to rely upon decision in a
case 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 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
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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 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."
(emphasis supplied).
8.6 At this stage, it is also apt to rely upon the decision of
Honourable Supreme Court of India in a case of Rajneesh
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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
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)
8.7 It is apposite to refer to and rely upon a recent decision
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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 technical
considerations should not be given undue and uncalled for emphasis.
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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."
(Emphasis supplied)
8.8 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
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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 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
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(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."
(emphasis supplied)
8.9 It is also profitable to rely upon the decision of the
Hon'ble Supeme Court of India in the 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 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)
9. Learned advocate Mr. Tamang for the petitioners
during the course of his submissions has relied upon the
decisions of the Hon'ble Apex Court in the cases of (i)
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Collector, Land Acquisition, Anantnag (supra) (ii) State of
Nagaland (supra) & (iii) N. Balakrishnan (supra). There is no
cavil that while considering an application filed under
Section 5 of the Indian Limitation Act, the Court is required
to take liberal approach but when it has been found that
there is a negligence / gross negligence on the part of the
petitioners in pursuing remedy available to them, would not
be justified to condone the delay even imposing any
condition. Even otherwise, considering the facts and
circumstances of the present case, the ratio laid down by the
learned advocate for the petitioners would not be
applicable.
10. Thus, 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 imposing any conditions including
costs. So, in view of the aforesaid authorities
pronouncements by honourable Supreme Court of India a
case of Rajneesh Kumar & Anr (Supra), K.B. Lal (Krishna
Bahadur Lal) (supra), Pathapati Subba Reddy (Died) BY L
RS & ORS (Supra) and Basawaraj and Another (Supra)
applied to the facts of case on hand, no case is made out by
petitioners for condonation of delay, thereby appellate court
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has committed no error much less any gross error while
rejecting impugned delay application.
CONCLUSION
11. The upshot of the aforesaid discussion, observations,
and reasons, I am of the view that there is no gross error of
law committed by trial court while not condoning delay of
1825 days in filing restoration application by petitioners as
they were negligent in filing such application.
12. So, keeping in mind the ratio laid down by the Hon'ble
Supreme Court of India so discussed herein above and while
exercising the power under Article 227 of the Constitution of
India, considering ratio of Garment Craft (Supra), this Court
does not find any merit in the present petition and the
present petition requires to be dismissed. Hence, the same is
hereby DISMISSED. No order as to cost.
(MAULIK J.SHELAT,J)
SALIM/
