Gujarat High Court
Bharatbhai Gopalji Nayak vs Geetaben D/O Gopalji Nayak W/O ... on 22 July, 2025
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C/CA/5280/2024 ORDER DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 5280 of
2024
In F/FIRST APPEAL NO. 25574 of 2024
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BHARATBHAI GOPALJI NAYAK & ANR.
Versus
GEETABEN D/O GOPALJI NAYAK W/O KIRITBHAI AMBELAL DESAI
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Appearance:
MR. SURAJ A SHUKLA(7185) for the Applicant(s) No. 1,2
MR BOMI H SETHNA(5864) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/07/2025
ORAL ORDER
1. This application is filed under Section 5 of the Limitation
Act, seeking condonation of delay of 423 days caused in
preferring the captioned appeal.
2. Heard learned advocate Mr. Suraj A. Shukla for the
applicants and learned advocate Mr. Bomi H. Sethna for the
respondent.
3. Learned advocate for the applicants has submitted that the
applicants herein filed a Summary Suit No.23 of 2017 before
learned 11th Additional Senior Civil Judge, Surat for a recovery
of Rs.50 lakhs with interest. The opponent herein who is
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original-defendant in the aforesaid summary suit filed an
application under Order 7 Rule 11 (a) and (d) of the Code of
Civil Procedure, 1908 for rejection of plaint. The application
was contested by the applicants. Learned trial Court by invoking
the provisions of Order 7 Rule 11 (d) of the Code of Civil
Procedure, 1908 rejected the plaint vide order dated 06.04.2023.
It is further submitted that applicants herein were not informed
by concerned advocate regarding rejection of the plaint and
therefore, applicants were not aware about the order of rejection
of plaint. On inquiry, in the month of January-2024, applicants
came to know about the order being passed on 06.04.2023.
Thereafter, application for certified copy came to be filed on
11.01.2024 and the certified copy of the impugned judgment
and decree was received on 12.01.2024. The impugned
judgment and decree came to be challenged by way of a Civil
Revision Application No.1854 of 2024 before this Court. As the
applicants were litigating under a bonafide mistake, the
aforesaid revision came to be withdrawn by applicants on
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22.02.2024 and thereafter, First Appeal came to be filed on
31.08.2024. Learned advocate for the applicants has relied upon
additional affidavit dated 03.02.2025 as well as medical papers
annexed with the additional affidavit. It is contended that on
19.08.2023, applicant was diagnosed with COPD (Chronic
Obstructive Pulmonary Disease) and thereafter, applicant was
hospitalized for treatment on 27.10.2023 and were discharged
on 29.10.2023. The prescription issued by the Hospital also
indicates that the applicant was under medication till
03.11.2023. It is further contended that as applicant was not
keeping good health, challenge against the judgment and decree
could not be raised within the prescribed period of limitation.
Learned advocate for the applicants has further relied upon an
averment made in the additional affidavit that the applicants had
to arrange necessary Court Fees and other legal fees and
therefore, delay has occasioned.
3.1. It is further contended that explanation which has been
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pleaded by the applicants is sufficient cause and this Court may
adopt a lenient view and condone delay. It is further contended
by learned advocate for the applicants that the suit is filed for
the recovery of the financial help which was advanced to the
original defendant who is a near relative of the applicants. It is
also brought to the notice of this Court that the original
defendant has also filed a Civil Suit prior to the suit filed by the
present applicants for a relief of declaration, partition and
cancellation of registered sale deed. It is further contended that
learned trial Court has wrongly held as there is no written
contract, the plaint was rejected. If an opportunity is given to the
applicants, applicants would be able to establish that learned
trial Court has committed an error by invoking the provisions of
Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908.
3.2. In support of his contentions, learned advocate for the
applicants has placed reliance upon the decision in the case of
State (NCT of Delhi) versus Ahmed Jaan reported in (2008) 14
SCC 582 and in the case of Collector, Land Acquisition,
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Anantnag and Another reported in (1987) SCC 107. It is
further contended that in the aforesaid decision, in paragraph
No.10, the Hon'ble Apex has referred the decision in the case of
O.P. Kathpalia V. Lakhmir Singh reported in (1984) 4 SCC 66.
The relevant portion of the said paragraph is reproduced as
under:-
"12. In O. P. Kathpalia v. Lakhmir Singh9, a Bench of three Judges
had held that if the refusal to condone the delay results in grave
miscarriage of justice, it would be a ground to condone the delay.
Delay was accordingly condoned. In Collector Land Acquisition v.
Katiji10 a Bench of two Judges considered the question of the 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
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 non-deliberate 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
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the State as a litigant, are accorded the same treatment and the law is
administered in an even-handed manner. There is no warrant for
according a step motherly treatment when the State is the applicant.
The delay was accordingly condoned.
15. It is axiomatic that decisions are taken by officers/agencies
proverbially at slow pace and encumbered process of pushing the files
from table to table and keeping it on table for considerable time
causing delay - intentional or otherwise - is a routine. Considerable
delay of procedural red tape in the process of their making decision is
a common feature. Therefore, certain amount of latitude is not
impermissible. If the appeals brought by the State are lost for such
default no person is individually affected but what in the ultimate
analysis suffers, is public interest. The expression 'sufficient cause'
should, therefore, be considered with pragmatism in justice-oriented
approach rather than the technical detection of sufficient cause for
explaining every day's delay. The factors which are peculiar to and
characteristic of the functioning of the governmental conditions would
be cognizant to and requires adoption of pragmatic approach in
justice-oriented process. The court should decide the matters on merits
unless the case is hopelessly without merit. No separate standards to
determine the cause laid by the State vis-a-vis private litigant could be
laid to prove strict standards of sufficient cause. The Government at
appropriate level should constitute legal cells to examine the cases
whether any legal principles are involved for decision by the courts or
whether cases require adjustment and should authorise the officers to
take a decision or give appropriate permission for settlement. In the
event of decision to file appeal needed prompt action should be pursued
by the officer responsible to file the appeal and he should be made
personally responsible for lapses, if any. Equally, the State cannot be
put on the same footing as an individual. The individual would always
be quick in taking the decision whether he would pursue the remedy by
way of an appeal or application since he is a person legally injured
while State is an impersonal machinery working through its officers or
servants."
3.3. No other submissions are made by learned advocate for the
applicants.
4. Per contra, learned advocate for the respondent has relied
upon the affidavit-in-reply and contended that the plaint of the
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applicants was rejected on 06.04.2023 by invoking only
provisions of Order 7 Rule 11 (d) of the Code of Civil
Procedure, 1908. It is further contended that the order dated
06.04.2023 was assailed by applicants by preferring a Civil
Revision Application No.1854 of 2024 which came to be
dismissed for non-removal of office objections by learned
Additional Register (Judicial) on 18.01.2024. Statement which
has been made by applicants in the application as well as in the
additional affidavit is wrong that the revision came to be
withdrawn on 22.02.2024. It is further contended that the
medical papers which are placed on record indicate that
applicant was admitted in the Hospital only from 27.10.2023 till
29.10.2023. The period between 18.01.2024 and 31.08.2024 has
not been explained in the application. In absence of any
explanation stating a cause for not filing the appeal within the
stipulated period of limitation, Court may adopt a lenient view
and the application deserves to be rejected.
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4.1. In support of his submissions, learned advocate for the
respondent has placed reliance on the following decisions.
(i) State of Madhya Pradesh versus Ramkumar Choudhary reported in 2024
INSC 932.
(ii) Rajneesh Kumar & Anr. Versus Ved Prakash reported in 2024 INSC 891.
(iii) Pathapati Subba Reddy (Died) by L.Rs. & Ors. v. The Special Deputy
Collector (LA) reported in [2024] 4 S.C.R. 241.
4.2. It is further contended that the explanation has to be
affirmed from the date of expiry of the period of limitation and
there has to be an existence of sufficient cause for condoning
delay. In absence of sufficient and adequate explanation, delay
cannot be condoned even if applicants have a good case on
merits.
4.3. No other submissions are made by learned advocate for the
respondent.
5. I have heard learned advocates for the parties and perused
the application, additional affidavit and affidavit-in-reply filed
by opponent. The challenge by applicants herein is against the
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judgment and decree passed by learned 11 th Additional Senior
Civil Judge, Surat, whereby the plaint of applicants came to be
rejected on 06.04.2023. Applicants have canvassed three reasons
for the delay; firstly, applicants are not aware about the
judgment and decree passed as they were not informed by their
advocate, secondly, the medical ground of applicant and thirdly
the short of finance. As per the submission of learned advocate
for the applicants, applicant was diagnosed with COPD
(Chronic Obstructive Pulmonary Disease) and was under
medication from 19.08.2023 and he was admitted in the
Hospital on 27.10.2023 and discharged on 29.10.2023.
6. The law is settled that whenever Court has to consider an
application for condonation of delay, applicants must establish
sufficient cause which prevented them from challenging the
impugned order. Though applicants are not expected to explain
each days' delay but it is for the applicants to explain the cause
for not challenging the impugned order within prescribed period
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of limitation. Against the impugned order, applicants filed Civil
Revision Application No.1854 of 2024 which came to be
withdrawn on 22.02.2024.
7. If the application is perused, the application is silent with
regard to explanation for not filing the appeal from 22.02.2024
till 31.08.2024. What was expected from applicants is to explain
the gap between 22.02.2024 to 31.08.24. Even for adopting a
lenient and justice oriented approach, applicants have to state
and aver the situation or reason for not preferring the appeal
between 22.02.2024 and 31.08.2024. In the additional affidavit,
applicants have not explained the gap between 22.02.2024 and
31.08.2024. What has been stated in the additional affidavit is
the fact of hospitalization between 27.10.2023 and 29.10.2023
and a financial constraint. Even in additional affidavit, the
period of hospitalization is only two days. No convincing
explanation has been made out by the applicants.
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8. In catena of decisions, it has been laid down by the
Hon'ble Apex Court that the length of delay is not always a
criteria for judging a sufficient cause but what is to be
considered is the explanation for inaction in not challenging the
judgment.
9. In the case of State of Madhya Pradesh (supra), while
addressing an issue of delay of 5 years 10 months and 16 days,
the Apex Court in paragraph No.7 has observed as under:-
"7. There is one another aspect of the matter which we must not
ignore or overlook. Over a period of time, we have noticed that
whenever there is a plea for condonation of delay be it at the instance
of a private litigant or State the delay is sought to be explained right
from the time, the limitation starts and if there is a delay of say 2
years or 3 years or 4 years till the end of the same. For example if the
period of limitation is 90 days then the party seeking condonation has
to explain why it was unable to institute the proceedings within that
period of limitation. What events occurred after the 91st day till the
last is of no consequence. The court is required to consider what came
in the way of the party that it was unable to file it between the 1 st day
and the 90th day. It is true that a party is entitled to wait until the last
day of limitation for filing an appeal. But when it allows the limitation
to expire and pleads sufficient cause for not filing the appeal earlier,
the sufficient cause must establish that because of some event or
circumstance arising before the limitation expired it was not possible
to ile the appeal within time. No event or circumstance arising after
the expiry of limitation can constitute such sufficient cause. There may
be events or circumstances subsequent to the expiry of limitation
which may further delay the filing of the appeal. But that the limitation
has been allowed to expire without the appeal being filed must be
traced to a cause arising within the period of limitation. (See: Ajit
Singh Thakur Singh and Another v. State of Gujarat, AIR 1981 SC
733)."
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10. The Apex Court while considering the question of
condonation of delay has observed that a party seeking
condonation has to explain why it was unable to institute
proceedings within the prescribed period of limitation. The
explanation has to be advanced for the period between the first
day of the starting point of limitation and till 90 days of the
period of limitation.
11. In the present case, applicants have assigned the reasons of
illness from 19.08.2023 till the filing of the revision application
but have not explained the source of knowledge about the
judgment and decree passed against them.
12. While discussing the explanation, in the cases where
advocates are blamed for not informing the aggrieved litigant,
Hon'ble Apex Court in the case of Rajneesh Kumar & Anr
(supra), has observed in paragraph No.10, which is reproduced
as under:-
"10. It appears that the entire blame has been thrown on the head of
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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."
13. In the case of Pathapati Subba Reddy (Died) by L.Rs. &
Ors.(supra), the Apex Court reiterated the law laid down in the
cases of consideration of an application for condonation of
delay. In Clause Nos.(vii) and (viii) of the Paragraph No.26 of
the said decision, the Hon'ble Apex Court has observed 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:
(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 17 condoning the delay for the
reason that the conditions have been imposed, tantamount to
disregarding the statutory provision."
14. The length of delay is definitely a relevant factor which
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the Court must take into consideration while considering
whether delay should be condoned or not. One of the
considerations is to see the approach of the applicants in
explaining the delay. In the present case, as discussed above, not
a single explanation is forthcoming in the application as well as
in the additional affidavit as to when did applicants come to
know the judgment and decree passed in their suit. The shortage
of funds is not a ground, whereby delay can be condoned. For
the litigants who are having insufficient funds to pay court fees,
law has taken care of such litigants and a litigant who is not
having sufficient means to pay Court fees, can resort the
provision of Order 33 of the Code of Civil Procedure, 1908
which contemplates that suits may be instituted by indigent
person.
15. As observed by the Apex Court in the case of Rajneesh
Kumar & Anr (supra), throwing a burden on the shoulder of the
advocate who was appearing for applicants in the trial Court was
not considered to be a sufficient cause. Applicants, before the
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medical contingency, ought to have remained vigilant in
knowing the status and stage of their suit. A litigant who has
remained idle and negligent is not termed as a 'vigilant litigant'.
Nowadays, even the courts have been modernized and well
equipped with modern tools. Status of every proceeding can be
seen and verified by visiting the official website of the Court. In
the modern era, not having knowledge about the order being
passed in the matter cannot be construed as a sufficient cause.
16. Considering the aforesaid facts and the law laid down by
the Apex Court in the above referred decisions, I am of the view
that applicants have failed to establish sufficient cause for
condoning the delay. In case of lack of bonafides, I am not
inclined to entertain this application. Resultantly, application
fails and the same is dismissed. Rule is discharged accordingly.
(D. M. DESAI,J)
RINKU MALI
