Gujarat High Court
Amrutlal Virabhai Shah Thro Poa vs Shah Hansraj Gosar on 23 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11220 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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AMRUTLAL VIRABHAI SHAH THRO POA & ORS.
Versus
SHAH HANSRAJ GOSAR & ORS.
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Appearance:
MR ARPIT P PATEL(5497) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
MR MANRAJ A BAROT(6224) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MR DARSHIT H RAVAL(11887) for the Respondent(s) No. 2.2,2.3,2.4,2.5
RULE NOT RECD BACK for the Respondent(s) No. 2.1
UNSERVED EXPIRED (R) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Arpit P. Patel for the petitioners
and learned Advocate Mr. Darshit H. Raval for respondent
Nos. 2.2 to 2.5.
2. The present Writ Application is filed under Article 227 of the
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Constitution of India, seeking the following reliefs:
"A) That the Hon'ble Court be pleased to admit and allow this
application.
(B) That the Hon'ble Court be pleased to quash and set aside the
impugned order (Annexure-F) dated 30.04.2013 of the Learned
Principal Senior Civil Judge, Jamnagar passed in Misc. Civil
Application no. 27 of 2012 and further be pleased to pass an order of
allowing a delay condoning application for the restoration of the Misc.
Civil Application No. 32 of 2000 in Special Civil Suit No. 80 of 1987.
(C) Any other and further relief/s as may be deemed just, fit and proper
in the facts and circumstances of the present case may kindly be
granted."
3. The parties will be referred to as per their original positions
before the Trial Court.
4. The short facts of the case appears to be that:
4.1. The petitioner herein is an original plaintiff of Special Civil
Suit No.80 of 1987 instituted against the respondents herein,
seeking declaration and injunction. The suit was reached at
the stage of trial and due to non-availability of the plaintiff, it
got dismissed for default on 7th February, 2000.
4.2. The plaintiff appears to have filed restoration application,
being CMA No. 32 of 2000, under Order 9, Rule 9 of the Code
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of Civil Procedure (hereinafter referred to as "CPC"). The
reasons best known to the plaintiff, due to non-availability of
plaintiff, again such restoration application came to be
dismissed for default on 25th March 2003.
4.3. The plaintiff took about 9 years and 23 days in filing the
restoration application in aforesaid restoration application.
So, the plaintiff appears to have filed the application being
CMA No. 27 of 2012, seeking condondation of delay of more
than 9 years in filing the restoration application, which is
impugned in the matter.
4.4. As there was a huge delay of 9 years and 23 days in filing
restoration application in the aforesaid restoration
application, it was opposed by the defendants by filing their
reply.
4.5. After hearing the parties at length, the Trial Court, vide its
judgment and order dated 30th April 2013, rejected the
aforesaid impugned delay application, by holding that neither
sufficient cause has been made out by the plaintiff nor any
reasons to condone such inordinate long delay in filing
restoration application in restoration application. Thus, the
Trial Court has found the plaintiff negligent and very casual
in pursuing his legal remedy available to him under the law
thereby, not exercised its discretion in favour of plaintiff.
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4.6. The plaintiff, having been aggrieved by the impugned order
passed by the Trial Court, has preferred the present Writ
Application.
5. SUBMISSION OF THE PETITIONER-PLAINTIFF:
5.1. Learned Advocate Mr. Patel would submit that the Trial
Court has committed a serious error of law by not condoning
the delay in filing the restoration application even not
allowed delay application by imposing costs upon the
plaintiff, thereby committed jurisdictional error which
requires to be corrected by this Court.
5.2. Learned Advocate Mr. Patel would submit that the main
reason of delay in filing the restoration application was the
fact that the learned advocate engaged by plaintiff had not
informed him about the dismissal of the restoration
application which occurred in the year 2003, which the
plaintiff came to know when he contacted another lawyer,
albeit in the year 2012 and immediately thereafter, the
plaintiff had filed impugned application. It is submitted that
the plaintiff was all throughout given an impression by his
Advocate concerned that his matter pending for
consideration before the Trial Court i.e. earlier restoration
application and in good faith, the plaintiff has not personally
went to the court to check the status of case, which resulted
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into delay in filing restoration application.
5.3. Learned Advocate Mr. Patel would further submit that the
plaintiff is permanent resident of Kenya and not residing in
Jamnagar, where the suit/restoration were instituted by him.
Although he came to India in the year 2006 and 2009, but in
the year 2006, after completion of the surgery of his wife at
Mumbai, he returned back to Kenya but never visited
Jamnagar. As such when he visited Jamnagar in the year
2009, a lawyer concerned had advised him to challenge
revenue proceedings, which has been done by him as per the
legal advice. Nonetheless, at the relevant point of time,
learned Advocate has not at all apprised him about the
dismissal of restoration application; otherwise, there was no
reason for the plaintiff to file restoration application after
delay of 9 years & 23 days.
5.4. Learned Advocate Mr. Patel would submit that the plaintiff is
aged about 80 years old, residing in Kenya and was
dependent upon his lawyer, who, unfortunately, did not
properly advised/informed him about the dismissal of the
restoration application in the year 2003 itself, caused
unintentional delay in filing restoration application in such
restoration application.
5.5. Lastly, learned Advocate Mr. Patel would submit that if the
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delay in filing the restoration application would not be
condoned, the plaintiff would remediless inasmuch as the suit
was dismissed for default at the stage of Order 9, Rule 9 of
the CPC, thereby plaintiff would not be in a position to file a
fresh suit. In light of the said fact, learned Advocate Mr. Patel
would request this Court to exercise its supervisory
jurisdiction under Article 227 of the Constitution of India by
imposing any condition, including exemplary costs, but
should condone the delay, thereby requested to allow the
impugned application.
5.6. To buttress his argument, he would rely upon the decision of
the Honourable Supreme Court of India in the case of Inder
Singh V/s. State of Madhya Pradesh reported in 2025 (O)
AIJEL-SC 74939 [2025-INSC-382].
5.7. So, making the above submissions, learned Advocate Mr.
Patel would request this Court to allow this writ application.
6. SUBMISSION OF THE RESPONDENT NOS.2.2 TO 2.5-
DEFENDANTS:
6.1. Per contra, learned Advocate Mr. Raval would submit that
there was a gross negligence on the part of the plaintiff in
pursuing his legal remedy, which caused delay of more than
9 years in filing restoration application in restoration
application, which was correctly not condoned by the Trial
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Court.
6.2. Learned Advocate, Mr. Raval, would further submit that as
per the settled legal position of law, plaintiff cannot be
allowed to shift entire burden and blame upon the lawyer
engaged by him and as such, it was duty cast upon the
plaintiff to inquire about and check the status of his legal
proceedings, even though residing abroad and having failed
to do so, any delay occurred in filing restoration application,
such delay is unpardonable and cannot be condoned.
6.3. Learned Advocate Mr. Raval would further submit that all
throughout the proceedings, as it has been observed in the
impugned order that plaintiff was remained totally indolent
and negligent in pursuing his suit, restoration application and
so also after dismissal of restoration application, he took
about more than 9 years to wake up from slumber by filing
restoration application in such restoration application. It is
submitted that conduct of the plaintiff would clearly suggest
that there was a gross negligence, inordinate delay and
inaction on the part of the plaintiff that resulted into such
huge unexplained delay and in that view of the matter, it
cannot be condoned.
6.4. Learned Advocate Mr. Raval would further submit that when
the plaintiff came back to India for the first time in the year
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2006 and so also in the year 2009, he could have easily
verified the status of his restoration application filed in the
suit and having not done so and rather pursuing revenue
proceedings in year 2009 itself suggests that the plaintiff was
not interested in the suit proceedings which was instituted by
him at the relevant point of time.
6.5. Learned Advocate Mr. Raval would further submit that as per
the settled legal position of law, when there is a gross
negligence, inordinate delay and callous approach on the
part of the plaintiff, even if sufficient cause is made out, the
Court should not condone such inordinate delay, even by
imposing any condition including exemplary cost.
6.6. Lastly, learned Advocate Mr. Raval would submit that there
is no error, much less any gross error and/or jurisdictional
error, committed by the Trial Court while not exercising its
discretion in favour of the plaintiff, having not condoned such
huge delay in filing restoration application, thereby, this
Court should not interfere with such well-reasoned order
passed by the Trial Court while exercising its power under
Article 227 of the Constitution of India.
6.7. Making the above submissions, learned Advocate Mr. Raval
would request this Court to reject the present application.
7. No further and other submissions are made.
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POINT FOR DETERMINATION:
8. The short question falls for consideration of this Court, as to
whether impugned order of the Trial Court refusing to
condone the delay of 9 years and 23 days in filing restoration
application in restoration application by plaintiff is just,
proper and in accordance with law or not?
ANALYSIS:
9. The facts which are narrated hereinabove are not in dispute.
The plaintiff instituted the suit in the year 1987, which got
dismissed for default in the year 2000 on 07/02/2000 due to
his non-availability. It appears that the plaintiff is residing
abroad in Kenya and does not frequently visited to India.
Nonetheless, a restoration application was timely filed at the
given point of time in the year 2000 itself, but for reasons
best known to the plaintiff, it was not properly attended to,
which ultimately resulted into its dismissal i.e. dismissed for
non-prosecution on dated 23/03/2003.
10. It further appears from the impugned application itself that
the plaintiff came to India in the year 2006 but visited
Mumbai city only as he had to attend to the surgery of his
wife and according to plaintiff, he had not visited Jamnagar
where the suit/restoration application were instituted before
trial Court, Jamnagar but he returned back to Kenya.
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Thereafter, he again visited India in the year 2009, where he
visited Jamnagar and as per the advice of his lawyer, he
pursued his revenue proceedings in relation to the suit
property itself. But, at the same time, the plaintiff did not
bother to check the status of his suit / restoration application
albeit, reason assigned by the plaintiff in the impugned
application is that his lawyer had informed him that such
proceeding is still pending before the Civil Court.
11. The plaintiff has all throughout maintained one stand that
due to non-information of dismissal of restoration application
occurred in the year 2003 by his lawyer, he could not file
restoration application within stipulated time. But when he
contacted another lawyer in the year 2012, then he came to
know about such dismissal. So, there was a delay of more
than 9 years in filing another restoration application in main
restoration application.
12. The explanation coming forth from side of the plaintiff is
nothing but shifting the entire burden upon the shoulder of
the lawyer, inasmuch as the plaintiff did not bother to check
the status of suit proceedings/restoration proceedings
instituted by him at the relevant point of time by any other
means. When, a litigant is facing a situation like present one,
where his suit is already dismissed for non-prosecution and
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having so filed restoration application, it is expected from
such litigant that he should be more vigilant and careful,
thereby the proceeding which has been instituted by him
cannot not entail dismissal by non-prosecution. The
restoration application ought to have been pursued by the
plaintiff rigorously and without any further default. When,
such restoration application came to be dismissed for want of
prosecution, it prima facie suggests, how casual
litigant/plaintiff pursuing his legal remedy filed before the
Civil Court, who are already overburdened. At the same time,
opponent cannot be expected to keep alive his interest to
defend such dead proceeding which suddenly surfaced after
these much years as plaintiff wake from deep slumber.
13. It is true that the Court should give liberal construction to
"sufficient cause" and to have a liberal approach while
adjudicating any delay application. At the same time, when
court finds that there is a gross negligence, inordinate delay
and/or indolent and careless approach on the part of the
litigant, Court should be very careful while exercising its
positive discretion in favour of such litigant due to whom
such inordinate delay occurred. In fact, in view of recent past
decisions of Honourable Supreme Court of India, such
unexplained, inordinate delay occurred due to sheer
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negligence of applicant need not requires to be condoned.
14. It is also required to be noted here that no steps have been
taken by the plaintiff against his erstwhile lawyer, to whom
he has blamed, albeit put entire blame for not taking steps to
file the restoration application and so also not informed him
in time about dismissal of earlier restoration application. This
conduct of plaintiff would also constitute the fact that
plaintiff has simply shifted his burden on the shoulder of
lawyer without anything to substantiate it, which this Court
ordinarily experiencing in most of the cases whenever there
is inordinate delay in filing appropriate application/
proceedings before the Court/Authority. This factor also
would stand against plaintiff, thereby the Trial Court and so
also this Court would not like to exercise its discretion in
favour of plaintiff.
15. As such, issue germane in the present writ application is
already answered in so many words by the Honourable
Supreme Court of India in its various decisions. I would like
to rely upon some of it, as follows:
15.1. It would apt to first rely upon the recent past decision of
Honourable Supreme Court of India delivered on 08-01-2025
in a case of H. Guruswamy & Ors. V/s. A. Krishnaiah Since
Deceased By Lrs. reported in Civil Appeal No. 317 of 2025
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reported as 2025 INSC 53, wherein held as under:
"[13] We are at our wits end to understand why the High Court
overlooked all the aforesaid aspects. What was the good reason for the
High Court to ignore all this? Time and again, the Supreme Court
has reminded the District judiciary as well the High courts that the
concepts such as "liberal approach", "Justice oriented approach",
"substantial justice" should not be employed to frustrate or jettison
the substantial law of limitation.
[14] We are constrained to observe that the High Court has exhibited
complete absence of judicial conscience and restraints, which a judge
is expected to maintain while adjudicating a lis between the parties.
[15] The rules of limitation are not meant to destroy the rights of
parties. They are meant to see that the parties do not resort to dilatory
tactics but seek their remedy promptly.
[16] The length of the delay is definitely a relevant matter which the
court must take into consideration while considering whether the
delay should be condoned or not. From the tenor of the approach of
the respondents herein, it appears that they want to fix their own
period of limitation for the purpose of instituting the proceedings for
which law has prescribed a period of limitation. Once it is held that a
party has lost his right to have the matter considered on merits
because of his own inaction for a long, it cannot be presumed to be
non-deliberate delay and in such circumstances of the case, he
cannot be heard to plead that the substantial justice deserves to be
preferred as against the technical considerations. While considering
the plea for condonation of delay, the court must not start with the
merits of the main matter. The court owes a duty to first ascertain the
bona fides of the explanation offered by the party seeking condonation.
It is only if the sufficient cause assigned by the litigant and the
opposition of the other side is equally balanced that the court may
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bring into aid the merits of the matter for the purpose of condoning the
delay.
[17] We are of the view that the question of limitation is not merely a
technical consideration. The rules of limitation are based on the
principles of sound public policy and principles of equity. No court
should keep the 'Sword of Damocles' hanging over the head of a
litigant for an indefinite period of time."
(emphasis supplied)
15.2. In the 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
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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)
15.3. It is also apposite to refer and rely upon the decision 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
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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.
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
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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)
15.4. 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 held thus:-
"[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:
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(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
(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)
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15.5. 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 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)
15.6. In somewhat similar factual situation where the plaintiff was
residing abroad and was not informed by his lawyer and
thereby, the suit got dismissed for default, at the time of
delay/restoration application, an affidavit was filed by lawyer
to the effect that he has not informed of the factum of
dismissal of suit to his client i.e. plaintiff of that suit. Even
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though such fact, a Coordinate Bench of this Court in a case
of Samsunisha Begaum W/O. Dr.Nasarullahkhan Dhaniani
And Ors. Vs. Vishnukumar Ambelal Patel reported in 2012
(3) GLR 2565, authored by Hon'ble Mr. Justice J. B. Pardiwala
(his Lordship then was) held thus:
"25. Under such circumstances, the trial Court committed a
serious error in condoning delay on the ground that the Advocate
Shri Upadhyay did not inform the original plaintiff as well the
respondents about the dismissal of the suit for non-prosecution. Even
if I assume for a moment that the same is true by itself would be no
ground to condone such a 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. I regret to state that
in the present case, learned Advocate of the plaintiff Shri Upadhyay
for some reasons has taken up the entire blame on his head and it
appears that the same has been done only with a view to get the delay
condoned. Over a period of time, there is a growing tendency on the
part of an Advocate to file affidavit trying to explain the circumstances,
under which, delay has occurred be it in preferring an appeal or filing
an application for restoration of suit like in the present case etc. I am
of the view that the practice of an Advocate filing his affidavit in an
application filed under Order 9, Rule 9 of Civil Procedure Code is
totally wrong and deserves to be deprecated. I have noticed in many
cases that even though an Advocate is not at fault, he would file an
affidavit taking the entire blame upon himself only because the
lethargic and negligent litigant wants him to file such an affidavit so
that the Court concerned in the name of substantial justice would
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condone the delay. Affidavit of an Advocate may come on record in the
rarest of rare circumstances and not as a matter of course. Let me
assume for a moment that in the present case, concerned Advocate of
the original plaintiff could not remain present on 20-9-1999 the day on
which the trial Court dismissed the suit for non-prosecution, and
thereafter, he was not able to keep a track of the suit but was it not the
duty of the original plaintiff to keep watch on the proceedings and
inquire once at least with his Advocate as regards the status of the
suit? This could have been done even if the original plaintiff and his
family was in U.S.A. I do not blame the original plaintiff in going to
U.S.A. but being a litigant in the Court of Law he is expected to keep
a close watch on the proceedings as well as on the status of such
proceedings. After filing a civil suit a litigant cannot go off to sleep
and wake up from a deep slumber after 5 years as if the Court is a
storage of suits filed by such negligent litigants. If that be so, then
Court would be quite justified in dismissing the suit for non-
prosecution and should be loathe enough to restore the suit unless
strong grounds are made out by the party concerned. There is one
more reason why I am very serious in commenting on the practice of
Advocates filing affidavit. There is a general impression in the mind
of the litigants that if a lawyer would file an affidavit saying that he
was unable to attend the Court or because of his negligence the suit
or appeal came to be dismissed then the Court would very willingly
accept such explanation and condone the delay. This impression
needs to be eradicated. Advocates at time forget that in the zeal to
help the client by filing such affidavit they would land up in difficulty
if a litigant would file proceedings for compensation on the ground
of deficiency in service."
(emphasis supplied)
So, merely because plaintiff is residing overseas would
not be a ground seeking exemption of limitation and cannot
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be absolved from his responsibility to get verify status of his
proceedings instituted by him before the Civil Court at
regular interval.
16. The judgment cited by learned advocate Mr. Patel is
distinguishable on facts; for instance, in Indra Singh (supra),
the dispute involved between the State and a private party,
with active participation and contest on merits from the
outset, unlike the present case. The High Court in that case,
having condoned the delay was challenged by private party
before Apex Court. So, considering such background of facts,
Apex Court has not interfered with the order of high court
condoning the delay. As such facts on hand and cited case
are not similar but quite distinguishable on all respect and
especially in case on hand, trial Court has not used its
discretion in favour of plaintiff by observing no sufficient
cause made out by him Thus, examination of merit of the
matter would stand on different footing which would well
defined by several decisions of Hon'ble Apex Court. Few
would referred herein below.
16.1. It is by now well settled legal position of law that in a case
where any positive exercise of discretion by Court below
then, appellate court should ordinarily would not interfere
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with such discretion exercised by Court unless its arbitrary,
perverse and or contrary to settled legal position of law.
16.2. It would apt to refer and rely upon following decisions of
Hon'ble Supreme Court of India which has clarified such
aspect of the matter.
16.3. In a case of N Balakrishnan vs. M. Krishnamurthy reported in
(1998) 7 SCC 123, it has been held as under:-
"[9] It is axiomatic that condonation of delay is a matter of discretion
of the Court. Section 5 of the Limitation Act does not say that such
discretion can be exercised only if the delay is within a certain limit.
Length of delay is no matter, acceptability of the explanation is the
only criterion. Sometimes delay of the shortest range may be
uncondonable due to want of acceptable explanation whereas in
certain other cases delay of very long range can be condoned as the
explanation thereof is satisfactory. Once the Court accepts the
explanation as sufficient it is the result of positive exercise of
discretion and normally the superior Court should not disturb such
finding, much less in revisional jurisdiction, unless the exercise of
discretion was on wholly untenable grounds or arbitrary or perverse.
But it is a different matter when the first Court refuses to condone the
delay. In such cases, the superior court would be free to consider the
cause shown for the delay afresh and it is open to such superior Court
to come to its own finding even untrammeled by the conclusion of the
lower Court."
(emphasis supplied)
16.4. Likewise, in a case of Sheo Raj Singh(D) Tr.Lrs.. vs Union Of
India reported in (2023) 10 SCC 531 held thus:-
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"33. 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 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.
Tammanasa, 2003 10 SCC 390. which in turn relied on the decision in
Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980
2 SCC 593. 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".
41. 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."
(emphasis supplied)
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17. The argument so canvassed by the learned Advocate Mr.
Patel that if delay would not be condoned, the plaintiff would
be remediless as he cannot file any fresh suit. Such argument
cannot be appreciated in light of the fact that the plaintiff
himself has to be blamed for this situation and due to his
inaction for long time resulted into an inordinate delay. Once,
having found him negligent in filing restoration application
and having remained indolent for years in pursuing his legal
remedy, the court cannot come to his rescue and help.
18. Finally, while exercising supervisory jurisdiction under
Article 227 of the Constitution of India, the High Court
should refrain from interfering with the discretionary orders
of the Appellate Court and there is limitation, thereby this
court cannot substitute its own view and the view taken by
court below unless palpably arbitrary, erroneous, perverse
and passed contrary to settled legal position of law, which is
not demonstrated here by defendants. [ See - Sameer Suresh
Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in
2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15
and 16) ]
19. In view of the aforesaid and in fact, I am in complete
agreement with reasons assigned by trial Court while
rejecting impugned delay application.
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20. Before parting, this Court vide its order dated 15/07/2013,
directed the petitioner/plaintiff to deposit Rs.50,000/-
towards the costs of the respondents, which is stated to have
been deposited by petitioner with the Registry of this Court.
21. Learned Advocate Mr. Raval appearing for respondent Nos.
2.2 to 2.5, under the instruction of his client would states
that said respondents are not interested to receive such
costs. In light of the said fact, the Registry is hereby directed
to refund the sum of Rs.50,000/- with accrued interest
thereon, if any, to the petitioner/plaintiff on proper
verification through RTGS/NEFT/Any other digital mode of
payment, if any, in the bank account of the petitioner/plaintiff
maintained by him.
CONCLUSION
22. Thus, upshot of said discussion and reasons would lead to one
conclusion that, there was gross negligence on the part of the
plaintiff in filing the restoration application be lately,
approximately after nine years and twenty-three days from
date of dismissal of first restoration application. No sufficient
cause as such, has been made out by plaintiff in the
impugned application.
23. In view of the aforesaid facts and ratio of various decisions of
Hon'ble Supreme Court/this Court so referred herein-above, I
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am of the view that there is no error, much less any serious
error of law and or a jurisdictional error of law committed by
Trial Court while rejecting the impugned delay application.
24. In view of the foregoing reasons and conclusion, the order
impugned passed by the trial Court rejecting the impugned
delay condonation application is just and proper, and the writ
petition deserves to be rejected and in fact, the same is
hereby rejected. Rule discharged. No order as to costs.
Registry to refund the amount of Rs. 50,000/ so deposited by
petitioner with accrued interest if any to petitioner/plaintiff
as aforesaid.
(MAULIK J. SHELAT, J)
Nilesh
