Gujarat High Court
Heirs And Legal Representatives Of ... vs Ramsinh Prabhatsinh Parmar (Deceased ... on 15 July, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/CA/955/2023 ORDER DATED: 15/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 955 of
2023
In F/FIRST APPEAL NO. 7280 of 2019
==========================================================
HEIRS AND LEGAL REPRESENTATIVES OF DECD. DOLATSINH @
DALPATSINH PARMAR & ORS.
Versus
RAMSINH PRABHATSINH PARMAR (DECEASED THROUGH HIS LEGAL
HEIRS) & ORS.
==========================================================
Appearance:
HIREN R PANDYA(8760) for the Applicant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,2,3,4,5,7,8
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 1
MR.ADITYA J PANDYA(6991) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7.1,1.7.2,1.7.3,2.1,2.2,2.3,2.4
SERVED BY AFFIX. (R) for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 15/07/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE MOOL CHAND TYAGI)
1. The present application is filed for seeking condonation of delay
of 1046 days in preferring the First Appeal against the impugned
judgment and decree dated 18.01.2016 passed by learned 11 th
Additional Senior Civil Judge & Additional C.J.M., Vadodara in Special
Civil Suit No.312/2013, whereby the plaint was rejected under Order 7
Rule 11(d) of Code of Civil Procedure.
NEUTRAL CITATION
C/CA/955/2023 ORDER DATED: 15/07/2025
undefined
2. It is stated that the father of the applicants namely Dolatsinh @
Dalpatsinh Prabhatsinh Parmar had instituted the suit being Special
Civil Suit No.312/2013 before the Court of learned Principal Senior Civil
Judge, Vadodara for seeking the relief of declaration, injunction,
partition and cancellation of sale deed. The plaint of the aforesaid suit
was rejected under Order 7 Rule 11(d) of Code of Civil Procedure vide
order dated 18.01.2016. The said order was challenged by the father of
the present applicants by way of preferring the Special Civil Application
No.11876/2016 before the High Court of Gujarat. Thereafter, the said
petition was came to be withdrawn on 22.07.2016 with a liberty to file
the First Appeal before the Court of competent jurisdiction. Thereafter,
the father of the applicants preferred the Regular Civil Appeal along with
an application being Civil Miscellaneous Application No.198/2016 for
seeking condonation of delay. The father of the present applicants
expired on 14.02.2018 and his legal representatives were brought on
record. The said application for condonation of delay was came to be
rejected by the learned Additional District Judge vide order dated
15.10.2018 on the ground of jurisdiction. Thereafter, the applicants have
preferred the Appeal before the High Court along with an application for
condonation of delay.
3. The notices of the application were duly served upon the
respondents but despite service, none appeared on behalf of the
respondents except respondent no.3.
4. Heard learned Advocates for the parties. Mr. Amit Thakkar,
learned Advocate with Mr. Hiren R. Pandya, learned Advocate
appearing on behalf of the applicants, submitted that the considerable
time was spent bonafidely in pursuing the Special Civil Application in
NEUTRAL CITATION
C/CA/955/2023 ORDER DATED: 15/07/2025
undefined
the High Court and thereafter in First Appeal before the learned District
Judge, Vadodara. The time spent bonafidely in prosecution of the
aforesaid legal proceedings should be excluded from the period of
limitation in view of Section 14 of the Limitation Act,1961. He further
submitted that after excluding the said period, in fact, the delay of 134
days has occasioned. He further submitted that the delay is neither
intentional nor malafide but the occasioned owing to the reasons stated
in the application. Learned Advocate for the applicants further submitted
that the Court should take the liberal approach in condoning the delay.
In support of his contention, learned Advocate for the applicants has
placed the reliance upon the judgment of the Apex Court rendered in
the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji
& Ors., reported in 1987 AIR (SC) 1353. Relying upon the ratio of the
aforesaid judgment, learned Advocate for the applicants submitted that
the present application deserves to be allowed.
5. On the other hand, Mr. Aditya J. Pandya, learned Advocate
appearing on behalf of the respondent no.3 has no objection if the delay
is condoned. The other respondents, despite service, have chosen not
to appear before the Court.
6. Having considered the submissions of the learned Advocates and
having perused the record, it is apparent on record that the
considerable time has been spent by the applicants in pursuing the
legal proceedings before the High Court in Special Civil Application
No.11876/2016 and thereafter pursuing the legal proceedings before
the District Court, Vadodara in Civil Miscellaneous Application
No.198/2016. Thus, in view of the provisions of Section 14 of the
Limitation Act, the said period is required to be excluded from the period
NEUTRAL CITATION
C/CA/955/2023 ORDER DATED: 15/07/2025
undefined
of limitation. The Civil Miscellaneous Application No.198/2016 was
came to be rejected on 15.10.2018 and thereafter the applicants have
preferred an Appeal along with the present application for condonation
of delay on 27.02.2019. The Appeal is required to be filed within the
period of 90 days, but, the Appeal along with an application for
condonation of delay was filed on 27.02.2019. Therefore, the delay of
253 days has occasioned in preferring the Appeal. It is settled
preposition of law that the delay in length can be condoned, if it is
properly explained and sufficient cause has been shown. It is also
settled preposition of law that it is the discretionary power of the Court
to condone the delay and discretion must be applied judiciously.
Considering these settled preposition of law, in our considered view, the
delay has been properly explained and sufficient cause has been
shown. At this juncture, it would be a profitable to refer the judgment of
Hon'ble Supreme Court in the case of Collector, Land Acquisition,
Anantnag(supra), wherein the Hon'ble Supreme Court has laid down
the following principles for considering the application for condonation of
delay and the same are reproduced hereunder:-
"1. Ordinarily a litigant does not stand to benefit by lodging an
appeal late.
2. Refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice being
defeated. As against this when delay is con- doned the highest that
can happen is that a cause would be decided on merits after hearing
the parties.
3. "Every day's delay must be explained"
does not mean that a pedantic approach should be made. Why not
every hour's delay, every second's delay? The doctrine must be
applied in a rational common sense pragmatic manner.
4. 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.
NEUTRAL CITATION
C/CA/955/2023 ORDER DATED: 15/07/2025
undefined
5. 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.
6. It must be grasped that judiciary is respected not on account of its
power to legalize injustice on technical grounds but because it is
capable of removing injustice and is expected to do so."
7. Thus, considering the ratio of the aforesaid judgment and having
regard to the reasons stated in the application, the present application
deserves to be allowed and the same is allowed accordingly. No order
as to costs. Registry to take necessary steps for listing the Appeal in
due course.
(SANGEETA K. VISHEN,J)
(MOOL CHAND TYAGI, J)
HARSHIT
