Gujarat High Court
Harji Jina Kanbi vs Premji Hirji Bhudiya on 22 July, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/CA/437/2025 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. 437 of
2025
In F/FIRST APPEAL NO. 983 of 2025
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HARJI JINA KANBI
Versus
PREMJI HIRJI BHUDIYA & ORS.
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Appearance:
MR DARSHIT H RAVAL(11887) for the Applicant(s) No. 1
MR HARSHIT S BHATT(12874) for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 4,5,6
UNSERVED EXPIRED (R) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 22/07/2025
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE MOOL CHAND TYAGI)
1. Instant application is, seeking condonation of delay caused in the
Captioned Appeal against the impugned judgment and decree dated
25.08.2023 passed by learned 3rd Additional Senior Civil Judge, Bhuj in
Special Civil Suit No.22/2019 instituted by the respondent nos.1 and 2
herein, seeking specific performance of contract, declaration and
permanent injunction and alternatively, relief for compensation. The said
suit was decreed partly.
2. Heard learned Advocates for the parties. Mr. Darshit H. Raval,
learned Advocate appearing on behalf of the applicant, submitted that
the applicant was the original-defendant before the learned Trial Court
in Special Civil Suit No.22/2019. The said suit came to be partly allowed
vide judgment and decree dated 25.08.2023. The said judgment and
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C/CA/437/2025 ORDER DATED: 22/07/2025
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decree was challenged by the present applicant before the Court of
learned District Judge, Bhuj by way of preferring the Regular First
Appeal being Regular Civil Appeal No.14/2024. The said Appeal came
to be returned on the ground of pecuniary jurisdiction in view of the
Circular No.C/0202/92 dated 16.09.2019 issued by the High Court of
Gujarat. Thereafter, the present applicant has preferred the First Appeal
along with the present application for condonation of delay on
09.01.2025.
3. It Is submitted that the Regular Civil Appeal No.14/2024 was
preferred under bonafide belief that the learned District Court has
jurisdiction to entertain the said Regular Civil Appeal and based on
bonafide belief. The considerable amount of time was spent in
prosecuting the Regular Civil Appeal before the Court of learned District
Judge. Therefore, the time spent in prosecuting the said First Appeal
before the Court of learned District Judge, is required to be excluded in
view of the provisions of Section 14 of the Limitation Act. He further
submitted that the delay is neither intentional nor malafide but the
occasioned owing to the reasons stated in the application.
4. Per contra, Mr. Harshit S. Bhatt, learned Advocate appearing on
behalf of the respondent nos.1 and 2, vehemently submitted that the
present applicant has malafidely preferred the Appeal in District Court,
knowing well that the learned District Judge has no jurisdiction to
entertain the said Appeal. He further submitted that the applicant has
deliberately caused the delay of 408 days in preferring the Appeal
before this Court with a view to frustrate the proceedings in the
execution petition. He further submitted that the conduct of the applicant
shows that the applicant was deliberately trying to stall the execution
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C/CA/437/2025 ORDER DATED: 22/07/2025
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proceedings on the ground of pendency of the Appeal preferred by him
before this Court. He further submitted that the present application is
devoid of merits and liable to be dismissed.
5. The respondent nos.4, 5 and 6 have been duly served, but they
have chosen not to appear before this Court.
6. Having considered the submissions of the learned Advocates for
the parties and having perused the record, it is evident that the
respondents herein instituted the Special Civil Suit No.22/2019 seeking
the relief of specific performance of contract, declaration and permanent
injunction in respect of the agreement to sell dated 17.05.2012 entered
into between the respondent nos.1, 2 herein and the applicant herein in
respect of the property situated in the sim of Vadzar Village bearing
Survey No.121/paiki 1 and Survey No.121/paiki 2, Dist. Bhuj. The suit
came to be allowed partly by the learned Trial Court vide judgment and
decree dated 25.08.2023. Thereafter, the applicant herein has preferred
the Appeal being Regular Civil Appeal No.14/2024 before the learned
District Judge, which came to be returned vide order dated 23.09.2024
and thereafter the applicant has preferred the Appeal along with the
instant application for condonation of delay on 09.01.2025. Perusal of
the record transpires that the applicant has bonafidely spent substantial
amount of time before the learned District Court in pursuing the Regular
Civil Appeal No.14/2024. Thus, in view of Section 14 of the Limitation
Act, the said period is required to be excluded.
7. It is settled proposition of law that the delay of any length can be
condoned, if sufficient cause has been shown for the same. It is also
settled proposition of law that while considering the application for
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C/CA/437/2025 ORDER DATED: 22/07/2025
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condonation of delay, the Court must take a liberal and pragmatic
approach, and must use the discretion judiciously. In our considered
view, sufficient cause has been shown by the applicant.
8. So far as the contention of the learned Advocate for the
respondent nos.1 and 2 is concerned, the instant Appeal has been
preferred with a view to stall the execution petition. It is settled
proposition of law that mere filing of Appeal would not amount to the
stay of execution. Therefore, the said plea is not sustainable.
9. In view of the above discussions, we are of the considered view
that having regard to the facts and circumstances of the present case,
the present application deserves to be allowed and accordingly, the
same is allowed and the delay of 408 days caused in preferring the
Appeal against the impugned judgment and decree dated 25.08.2023
passed in Special Civil Suit No.22/2019 is condoned. No order as to
costs. Registry to take necessary steps accordingly.
(SANGEETA K. VISHEN,J)
(MOOL CHAND TYAGI, J)
HARSHIT
