Gujarat High Court
Gram Panchayat , Kandhi vs Heirs Of Rambhai Khimabhai Harijan on 7 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 223 of 2025
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GRAM PANCHAYAT , KANDHI
Versus
HEIRS OF RAMBHAI KHIMABHAI HARIJAN & ORS.
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Appearance:
MR VISHAL C MEHTA(6152) for the Petitioner(s) No. 1
MR. RADHESH Y VYAS(7060) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/01/2025
ORAL ORDER
1. The present petition is filed by the original defendant
(appellant/applicant) under Article 227 of the Constitution of India
against the judgment and order dated 16.10.2024 passed by the 2 nd
Additional District Judge, Gir-Somnath in Civil Miscellaneous
Application No.32 of 2023. Petitioner has prayed for the following
reliefs:-
"A. writ of certiorari or any other writ, order or
direction may kindly be issued to quash and set aside
the judgement and order dated 16-10-2024 passed by
the Court of 2nd Additional District Judge, Gir-
Somnath at Una in Miscellaneous Civil Application No.
32 of 2023, at Annexure - 'D' by allowing the said
application, preferred by the Petitioner, as prayed for,
in the interest of justice.
B. Pending hearing and final disposal of the present
Special Civil Application, the implementation,
operation and execution of the judgement and decree
passed by the court of the Principal Senior Civil Judge,
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Una in Regular Civil Suit No. 98 of 2001 dated 12-04-
2019, may kindly be ordered to be stayed, in the
interest of justice.
C. Any other and/or further reliefs that may be
deemed necessary and expedient in the interest of
justice may kindly be granted;"
2. The parties will be referred to as per the original position in
the Regular Civil Suit No.98 of 2001 filed by the respondents before
the Principal Senior Civil Judge, Una.
3. Brief facts of the case are as under:-
3.1. The aforesaid suit appears to have been filed by the
respondents-plaintiffs seeking permanent injunction against
defendants. After considering the evidence on record, the trial Court
has decreed the suit in favour of plaintiff vide judgment and decree
dated 12.4.2019.
3.2. Such judgment passed by the trial Court came to be challenged
by defendants by Regular First Appeal filed under Section 96 read
with Order 41 of the Code of Civil Procedure, 1908 before the
District Judge, Una. As there is a delay of about 1492 days (more
than four years), Civil Miscellaneous Application No.32 of 2023 came
to be filed in such appeal.
3.3. The plaintiff has objected such delay application by filing its
detailed reply. After hearing the parties and considering the
submissions made in the delay application, vide its impugned
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judgment dated 16.10.2024, the 2nd Additional District Judge, Gir-
Somnath rejected such delay application.
3.4. Being aggrieved and dissatisfied with rejection of delay
application of plaintiff - petitioner by the 2 nd Additional District
Judge, Gir-Somnath vide its impugned order dated 16.10.2024,
passed in Civil Miscellaneous Application No.32 of 2023, present
petition has been filed.
CONTENTION OF THE PETITIONER:-
4. Heard learned advocate Mr. Vishal C. Mehta for the petitioner.
4.1. He would submit that learned District Court has without
appreciating averments made in the application and by not
appreciating law laid down by the Hon'ble Apex Court of India while
adjudicating delay application, erroneously rejected the application
of the plaintiff in filing its First Appeal.
4.2. He would further submit that because of non-intimation of
impugned judgment and decree passed by the Trial Court by
advocate engaged by the plaintiff resulted into delay in filing Regular
Appeal.
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4.3. He would further submit that there is no malafide, negligence
and or dilatory tactic used by office of the plaintiff and there is no ill-
intention on the part of the plaintiff to file appeal after delay of 1492
days.
4.4. To buttress his argument, he relied upon decisions rendered by
the learned Single Judge of this Court.
4.4.1 First one, in the case of Dodidya Hajabhai Naran v. Shri
Jilla Panchayat Junagadh Through District Development
Officer; 2023 (0) AIJEL-HC 247283. Para Nos.11 and 12 are
reproduced as under:-
"11. In State of Kerala v. E.K. Kuriyipe it was held that
whether or not there is sufficient cause for condonation
of delay is a question of fact dependent upon the facts
and circumstances of the particular case. In Milavi Devi
v. Dina Nath it was held that the appellant had
sufficient cause for not filing the appeal within the
period of limitation. This Court under Article 136 can
reassess the ground and in appropriate case set aside
the order made by the High Court or the tribunal and
remit the matter for hearing on merits. It was
accordingly allowed, delay was condoned and the case
was remitted for decision on merits.
12. In O.P.Kathpalia v. Lakhmir Singh a Bench of three
Judges had held that if the refusal to condone the delay
results in grave miscarriage of justice, it would be
aground to condone the delay. Delay was accordingly
condoned. In Collector, Land Acquisition v. Katiji a
Bench of two Judges considered the question of
limitation in an appeal filed by the State and held that
Section 5 was enacted in order to enable the court to do
substantial justice to the parties by disposing of matters
on merits. The expression 'sufficient cause' is
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adequately elastic to enable the court to apply the law
in a meaningful manner which subserves the ends of
justice that being the life purpose for the existence of
the institution of courts. It is common knowledge that
this Court has been making a justifiably liberal
approach in matters instituted in this Court. But the
message does not appear to have percolated down to all
the other courts in the hierarchy. This Court reiterated
that the expression 'every day's delay must be
explained' does not mean that a pedantic approach
should be made. The doctrine must be applied in a
rational, common sense, pragmatic manner. When
substantial justice and technical considerations are
pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim
to have vested right in injustice being done because of a
nondeliberate delay. There is no presumption that delay
is occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant does
not stand to benefit by resorting to delay. In fact he
runs a serious risk. Judiciary is not respected on
account of its power to legalise injustice on technical
grounds but because it is capable of removing injustice
and is expected to do so. Making a justice-oriented
approach from this perspective, there was sufficient
cause for condoning the delay in the institution of the
appeal. The fact that it was the State which was seeking
condonation and not a private party was altogether
irrelevant. The doctrine of equality before law demands
that all litigants, including the State as a litigant, are
accorded the same treatment and the law is
administered in an everhanded manner. There is no
warrant for according a step motherly treatment when
the State is the applicant. The delay was accordingly
condoned."
4.4.2. Another one rendered in the case of State of Gujarat v.
Arunkumar Sukhdevbhai Trivedi passed in Second Appeal
No.3619 of 2020. Paras 14, 15 and 16 of the same are as under:-
"14. It is to be remembered that in every case of delay some lapse
on the part of the litigant concerned can be attributed. Albeit
alone it is not enough to turn down the plea and to shut the door
of litigant forever. The explanation if does not smack of malafide
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or it is not put forth as a dilatory tactics, the Court must show
consideration to the aspect. Opposite position can also be
invented while the Court has reasonable ground to believe that
delay was caused by the party deliberately to gain time, then the
Court should lean against acceptance of expression. We may also
refer to the observations of the Hon'ble Supreme Court in case of
Maniben Devraj Shah (supra) as under :
"24. What colour the expression 'sufficient cause'
would get in the factual matrix of a given case would
largely depend on bona fide nature of the explanation.
If the Court finds that there has been no negligence on
the part of the applicant and the cause shown for the
delay does not lack bona fides, then it may condone the
delay. If, on the other hand, the explanation given by
the applicant is found to be concocted or he is
thoroughly negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion not to
condone the delay.
25. In cases involving the State and its
agencies/instrumentalities, the Court can take note of
the fact that sufficient time is taken in the decision
making process but no premium can be given for total
lethargy or utter negligence on the part of the officers
of the State and / or its agencies / instrumentalities and
the applications filed by them for condonation of delay
cannot be allowed as a matter of course by accepting
the plea that dismissal of the matter on the ground of
bar of limitation will cause injury to the public
interest."
15. What could be understood that for explanation of the sufficient
cause if Court finds that there has been no negligence on the part
of the applicant and the explanation shows that the delay does not
smack of malafide then the Court may condone the delay. On the
other hand, if the explanation is found to be concocted or
negligent in prosecuting his case, the Court can decline to
condone the delay. If State is litigant, seeking condonation of
delay though law of equity demands that State should be put a par
with other litigant, some latitude should be given to the State.
Recently, the Supreme Court has thoroughly discussed this issue
in case of Sheo Raj Singh (Deceased) (supra), after referring
various judgments on the subject matter including its judgment in
the case of Esha Bhattacharjee vs. Managing Committee of
Raghunathpur Nafar Academy and others - (2013) 12 SCC 649 as
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well as judgment in the case of Mst. Katiji (supra), in para 29, 30,
31 and 37, Hon'ble Apex Court has observed as under:
"29. Considering the aforementioned decisions, there
cannot be any quarrel that this Court has stepped in to
ensure that substantive rights of private parties and the
State are not defeated at the threshold simply due to
technical considerations of delay. However, these decisions
notwithstanding, we reiterate that condonation of delay
being a discretionary power available to courts, exercise of
discretion must necessarily depend upon the sufficiency of
the cause shown and the degree of acceptability of the
explanation, the length of delay being immaterial.
Sometimes, due to want of sufficient cause being shown or
an acceptable explanation being proffered, delay of the
shortest range may not be condoned whereas, in certain
other cases, delay of long periods can be condoned if the
explanation is satisfactory and acceptable. Of course, the
courts must distinguish between an 'explanation' and an
'excuse'. An 'explanation' is designed to give someone all
of the facts and lay out the cause for something. It helps
clarify the circumstances of a particular event and allows
the person to point out that something that has happened
is not his fault, if it is really not his fault. Care must
however be taken to distinguish an 'explanation' from an
'excuse'. Although people tend to see 'explanation' and
'excuse' as the same thing and struggle to find out the
difference between the two, there is a distinction which,
though fine, is real. An 'excuse' is often offered by a person
to deny responsibility and consequences when under
attack. It is sort of a defensive action. Calling something as
just an 'excuse' would imply that the explanation proffered
is believed not to be true. Thus said, there is no formula
that caters to all situations and, therefore, each case for
condonation of delay based on existence or absence of
sufficient cause has to be decided on its own facts. At this
stage, we cannot but lament that it is only excuses, and not
explanations, that are more often accepted for condonation
of long delays to safeguard public interest from those
hidden forces whose sole agenda is to ensure that a
meritorious claim does not reach the higher courts for
adjudication.
30. Be that as it may, it is important to bear in mind that
we are not hearing an application for condonation of delay
but sitting in appeal over a discretionary order of the High
Court granting the prayer for condonation of delay. In the
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case of the former, whether to condone or not would be the
only question whereas in the latter, whether there has
been proper exercise of discretion in favour of grant of the
prayer for condonation would be the question. Law is fairly
well-settled that "a court of appeal should not ordinarily
interfere with the discretion exercised by the courts
below". If any authority is required, we can profitably refer
to the decision in Manjunath Anandappa v. Tammanasa12,
which in turn relied on the (2003) 10 SCC 390 decision in
Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor
Sabha13 where it has been held that "an appellate power
interferes not when the order appealed is not right but
only when it is clearly wrong".
31. The order under challenge in this appeal is dated 21st
December 2011. It was rendered at a point of time when
the decisions in Mst. Katiji (supra), Ramegowda (supra),
Chandra Mani (supra), K.V. Ayisumma (supra) and Lipok
AO (supra) were holding the field. It is not that the said
decisions do not hold the field now, having been overruled
by any subsequent decision. Although there have been
some decisions in the recent past [State of M.P. v. Bherulal
is one such decision apart from University of Delhi (supra)]
which have not accepted governmental lethargy, tardiness
and indolence in presenting appeals within time as
sufficient cause for condonation of delay, yet, the exercise
of discretion by the High Court has to be tested on the
anvil of the liberal and justice oriented approach
expounded in the aforesaid decisions which have been
referred to above. We find that the High Court in the
present case assigned the following reasons in support of
its order:
a. The law of limitation was founded on public policy,
and that some lapse on the part of a litigant, by itself,
would not be sufficient to deny condonation of delay as
the same could cause miscarriage of justice.
b. The expression sufficient cause is elastic enough for
courts to do substantial justice. Further, when
substantial justice and technical considerations are
pitted against one another, the former would prevail.
c. It is upon the courts to consider the sufficiency of
cause shown for the delay, and the length of delay is not
always decisive while exercising discretion in such
matters if the delay is properly explained. Further, the
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merits of a claim were also to be considered when
deciding such applications for condonation of delay.
d. Further, a distinction should be drawn between
inordinate unexplained delay and explained delay,
where in the present case, the first respondent had
sufficiently explained the delay on account of
negligence on part of the government functionaries and
the government counsel on record before the Reference
Court. e. The officer responsible for the negligence
would be liable to suffer and not public interest through
the State. The High Court felt inclined to take a
pragmatic view since the negligence therein did not
border on callousness.
*** *** ***
37. Having bestowed serious consideration to the rival
contentions, we feel that the High Court's decision to condone the
delay on account of the first respondent's inability to present the
appeal within time, for the reasons assigned therein, does not
suffer from any error warranting interference. As the
aforementioned judgments have shown, such an exercise of
discretion does, at times, call for a liberal and justice-oriented
approach by the Courts, where certain leeway could be provided
to the State. The hidden forces that are at work in preventing an
appeal by the State being presented within the prescribed period
of limitation so as not to allow a higher court to pronounce upon
the legality and validity of an order of a lower court and thereby
secure unholy gains, can hardly be ignored. Impediments in the
working of the grand scheme of governmental functions have to
be removed by taking a pragmatic view on balancing of the
competing interests."
16. Given the reasons it appears that opponent has failed to point
out any malafide or negligence on the part of the applicant in not
filing the second appeal within time. The negligence of GP offices or
their officers, which is mainly argued by learned advocate
Mr.Solanki, may suffer the responsible officer but no public interest
which the State is espousing through. The pragmatic view is
required to be taken in the matter and in background of this aspect
the explanation of delay of 703 days is to be seen and considered.
They are not found to be colossal delay compared to the public
interest involved in the matter. In facts and circumstances of the
case, the judgments relied upon by the learned advocate Mr.Solanki
would not avail any benefit to his case.
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4.5. Learned Advocate Mr. Mehta, thus, concluded his argument
with the request that considering the fact that petitioner is a Gram
Panchayat being a Public Authority, it requires to get legal advice
from its panel advocates / advocate engaged for prosecuting any
legal remedy and ordinarily, officer concerned would follow the legal
advise given to them. So, he would request that on suitable condition
/ cost, if this Court deems it fit to impose upon the plaintiff, delay
may be condoned.
ANALYSIS
5. I have gone through the averment made in the petition as well as
the documents which are annexed and also perused the impugned
delay application as well as order passed thereon by the District
Court concerned.
5.1. It appears from the documents which are available with the
petition suggesting a fact that judgment and decree challenged in
the appeal was passed on 12-04-2019. It is so stated in para-2 of the
impugned delay application filed by the petitioner that the certified
copy of said judgement/decree impugned in the appeal was applied
on 16.01.2023, which was ready on 20.01.2023. Thereafter, it
appears that regular civil appeal was filed by petitioner on 10-05-
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2023 wherein there was delay of more than 4 years in filing it which
was filed on 05-06-2023. At this stage, its requires to be noted here
that though certified copy of the judgement/decree impugned in the
appeal was ready on 20-01-2023 but still petitioner could not file
appeal till 10-05-2023 and in fact impugned delay application was
filed on 05-06-2023. Prim facie, this shows insensitive approach on
the part of a public institution who is pursuing legal remedy in the
court of law and this would be one of factors to be taken into
account while appreciating submissions made by learned advocate of
the petitioner.
5.2. When I have examined cause of the delay so mentioned in the
impugned delay application, except blaming the advocate engaged
by the petitioner before the trial court, nothing comes out from the
application. It is very easy to blame the advocate, thereby tried to
shift entire responsibility on the shoulder of advocate.
5.3. It is worth to note that in para-3 & 4 of impugned delay
application, it has been admitted by the petitioner that it came to
notice of the petitioner about passing of judgement/decree impugned
in the appeal in month of October, 2019 but despite requesting its
learned advocate who has not paid any heed resulted into late filing
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of the appeal i.e. in month of May/June, 2023. Such facts mentioned
in the application is bereft of any particulars including none of the
exchange of the letters between the petitioner and its advocate in
relation to judgement/decree impugned in the appeal were placed it
on record. The only so called explanation is COVID-19 situation but
nothing has come out what steps have been taken by petitioner
between October, 2019 to February, 2022 regards to challenge of
the judgement/decree passed by the trial court. The petitioner being
public authority could not have stopped its work in said period. This
itself show that explanation is lacking bonafide.
5.4. Be that as it may, such facts would not constitute a sufficient
cause and can not be considered as a ground for condonation of
delay as much as that any advice received by the litigant who is an
authority at least requires to understand the sensitivity of nature of
proceedings especially when its earlier suit got dismissed and
subsequent suit filed by opponents herein allowed.
5.5. It is also required to be taken note that when the advocate who
was engaged by the petitioner initially not informed about passing of
the judgment and decree in earlier suit but very advocate was
engaged by the petitioner / defendant in the said subsequent suit
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filed by respondents herein speaks volume about the conduct of
official of the plaintiff about conducting of legal matters in the Court
of law. It is not the case of the petitioner that no other advocate was
available in its area except one who was engaged. In fact after
March, 2022 having so engaged another lawyer, petitioner could not
able to file appeal till May/June 2023.
6. Learned advocate Mr. Mehta appearing for the petitioner
has relied upon two decisions of this Court whereby he would
emphasize that liberal approach should be taken by the Court when
there is no negligence on the part of applicant and there is no
malafide attributed alleged by the other side upon the authorities
then to do substantial justice between the parties and without taking
any hyper technical approach in the matter, delay requires to be
condoned by the Court.
6.1. I have gone through both these decisions passed by learned
Single Judge of this Court referring case law set out by the Honb'e
Apex Court of India on the aspect of condonation of delay viz-a-viz
sufficient cause. There is no cavil that wherever there is a delay
application is filed wherein a sufficient cause is made out and no
negligence / malafide / dilatory tactics used by the applicant,
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ordinarily the approach of the Court would be deemed towards
granting such application thereby matter can decided on merits. It is
required to be noted here that in Dodidya Hajabhai Naran (supra),
the challenge in the petition was against granting condonation of
delay by the appellate Court and there was delay of 240 days in
filing the appeal. After considering the averments made in the
application, discretion used by the appellate Court in favour of the
applicant and there was no negligence / malafide on the part of
appellants / applicants of that case, this Court would find that no
interference is required while exercising its power under Article 227
of the Constitution of India. Once the trial Court and or appellate
Court exercises discretion while condoning the delay, this Court in
its jurisdiction under Article 227 of the Constitution of India
ordinarily should not interfere such discretion used by the Court
concern unless such discretion is used arbitrarily or manifestly
contrary to the records germane from the delay application.
6.2. In the case of Arunkumar Sukhdevbhai Trivedi (supra),
wherein there was delay of 703 days at the instance of the State in
filing the appeal before this Court and as observed by this Court that
there is no malafide or negligence on the part of applicant in not
filing the second appeal, delay was condoned.
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6.3. Both these decisions would not be applicable to the facts of the
present case in as much as in those aforesaid decisions, either a
positive discretion exercised by the District Court concerned in
favour of the applicant and or in absence of any negligence/malafide
on the part of the applicant, a delay of 703 days was condoned by
this Court.
6.4. So far as present case is concern, considering entire set of
facts and averments made in the impugned delay application, it has
come on record that petitioner was totally lethargic, negligent and
remained silent for quite long time after passing of the decree. Thus,
in view of aforesaid facts and circumstance, the District Court
concerned has not exercised its discretion in favour of petitioner
rightly so because neither any sufficient cause made out by the
plaintiff nor such approach on the part of the District Court can be
said to be an arbitrary in nature which requires interference by this
Court in its jurisdiction under Article 227 of the Constitution of
India.
7. It is true that length of delay is not material while considering any
delay application but when there is gross delay like in the present
one i.e. 1492 days (more than 4 years) delay in filing appeal, there is
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some relevance to such gross delay. After going through the entire
set of facts and documents which are annexed to the petition, I am of
the view that petitioner is unable to show any sufficient cause which
prevented it in filing appeal except one fact that it remained
negligent being a public authority while pursuing the legal remedy
available to it.
7.1. At this stage, 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 re-visiting 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
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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.
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
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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."
emphasized supplied.
7.2. It is also profitable to rely upon the decision of Hon'ble
Supeme 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 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."
Emphasized supplied.
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7.3. Lastly, 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
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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)
7.4. Thus, in view of aforesaid clear pronouncement of law by
Honourable Supreme Court of India on issue of condonation of
delay, if apply to the facts of the present case, petitioner has
miserably failed to make out sufficient cause in its delay
application.
8. Lastly, it is apposite to refer the judgment of Hon'ble Apex Court
in the case of M/s Garment Craft Vs. Prakash Chand Goel
reported in 2022 4 SCC 181, more particularly Para-18 which
reads as under :-
"[18] Having heard the counsel for the parties, we
are clearly of the view that the impugned order 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 re-appreciate, 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. The jurisdiction
exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or
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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. Explaining the scope of
jurisdiction under Article 227, this Court in Estralla
Rubber v. Dass Estate (P) Ltd., 2001 8 SCC 97 as
observed:-
"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."
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9. Keeping in mind the ratio laid down in the
aforementioned decisions applying to the facts of the case on
hand, I am of the opinion that this is a case of gross
negligence at the hands of public authority while pursuing
legal remedy available to them under the law. In view of the
aforesaid ratio of the decisions of Supreme Court of India
including in the case of M/s Garment Craft (supra), I am of the
opinion that District Court has not committed any error of
law much less any gross/apparent error of law thereby not
allowed impugned delay application then no interference is
required by this Court under Article 227 of the Constitution
of India.
CONCLUSION
10. The upshot of the aforesaid observation, discussion and
reasons, I am of the opinion that order impugned in the petition
does not requires any interference under Article 227 of the
Constitution of India as no sufficient cause is made out by the
petitioner while preferring the appeal almost after more than 4
years from passing of judgment and decree passed by the trial
Court. Thus, there is no merit in the petition and the same is hereby
dismissed. No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
