Gujarat High Court

Lh Of Bhikhaji Sonaji Since Deceased vs The State Of Gujarat on 31 January, 2025

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                             C/SCA/14785/2024                                   ORDER DATED: 31/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 14785 of 2024

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                                     LH OF BHIKHAJI SONAJI SINCE DECEASED & ORS.
                                                        Versus
                                             THE STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR RAKESH R PATEL(3239) for the Petitioner(s) No. 1
                       ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
                       Respondent(s) No. 1,2
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 31/01/2025

                                                             ORAL ORDER

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

Constitution of India with following prayers;

"13.A That this Honourable Court may be pleased to issue a writ of certiorari or in the nature of certiorari and/or any other appropriate writ or direction by setting aside the judgment and order dated 06.03.2024 passed by the 5th Additional District Judge, Tharad at Banaskantha passed in Miscellaneous Civil Application No.2 of 2020 (Annexure E) as well as judgment and order dated 10/11/2017 passed by Principal Senior Civil Judge, Deesa below Exh.1 application filed in Civil Misc. Application No.41/2017 (Annexure-D) and thereby may be pleased to direct the learned Principal Senior Civil Judge, Deesa to condone delay in filing restoration application.

B. That this Honourable Court be pleased to pass such other further orders as the nature and circumstances

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of the case may be demand and for this act of kindness and justice, the petitioners herein, as in duty bound, shall for pray."

2. Heard learned advocate for the petitioner. He would state

that the predecessor of the petitioner has filed Regular Civil

Suit No. 135 of 1999 before the Deesa Court against the

respondents was disposed as withdrawn.

2.1 He would states that the aforesaid suit came to be

withdrawn on 27.06.2000 by submitting the withdrawal

purshish, which was not signed by the original plaintiff, i.e.

predecessor of the petitioner. This fact never came to light

during the lifetime of the plaintiff, but later on, when inquired

from the advocate, petitioner came to know that the aforesaid

suit was already disposed of as withdrawn. So the petitioner

filed an application under Order 9 Rule 4 of the Code of Civil

Procedure, 1908, for its restoration before the concerned court.

2.2 he would further submit that the learned Principal Senior

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Civil Judge, Deesa vide order dated 10th November 2017,

rejected the delay application filed in such a restoration

application and observed that there is a delay of more than 17

years in filing such restoration application.

2.3 He further states that the present petitioners have

preferred Miscellaneous Civil Appeal No. 2 of 2020 under

Order 43 Rule 1 of the Code, 1908, before the court of

Learned Additional District Judge, Tharad, Dist; Banaskantha,

which came to be rejected by an impugned order dated

06.03.2024. So he would submit that petitioner has no other

option but to prefer the present petition.

3. Learned Advocate Mr. Patel would submit that neither

the original plaintiff nor the petitioners were aware of such

withdrawal of the suit, as no signature was obtained on the

withdrawal purshish, which was filed before the trial court,

thereby, the suit came to be disposed of as withdrawn. He

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would submit that petitioners are residing in the interior part

of District Banaskantha and are illiterate, having no knowledge

about the order or the court proceedings.

3.1 He would further submit that a liberal approach ought to

have been taken by the court, and thereby, the delay could

have been condoned. He would submit that no prejudice will

be caused to the respondent if the delay is condoned and the

suit is restored. No other or further arguments are made.

4. It is clear that the suit was disposed of as withdrawn on

27-06-2000, and after about 17 years and 2 months, a

restoration application came to be filed by the legal heirs of

the original plaintiff. The original plaintiff, i.e. the predecessor

of the petitioners, died in the year 2005, as observed in the

impugned order. So, during the lifetime of the original

plaintiff, he had never inquired about the status of the suit

proceedings and did not even think it fit to get it restored.

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4.1 The petitioner, being the legal heir of the original

plaintiff, chosen to file a restoration application in the year

2017, almost 12 years after the demise of his father. After

examining the matter in detail and going through both the

impugned orders under challenge, it clearly proved that there

is no sufficient cause made out in the impugned delay

application, whereby petitioners approached the court after

about 17 years from the date of disposal of the suit. This court

is also in complete agreement with the findings recorded by

both the courts below.

4.2 It is required to be appreciated that the length of delay

is not material, but the reason of the delay is material. As

both the courts have considered that no sufficient cause is

made out, there is gross delay in filing such a restoration

application, then the length of delay does become material to

some extent. There was heavy burden upon the applicants to

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make out a case for sufficient cause which prevented them

from approaching the court, but same is not discharged by the

petitioners.

5. 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 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-

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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 of

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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)

5.1 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

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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

(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."

5.2 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

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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)

5.3 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 act on the part of the applicant even

by imposing any conditions including costs.

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