Gujarat High Court
Kapilaben W/O Shankarbhai Desaibhai ... vs Jani Harendrakumar Chimanbhai on 17 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9702 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr.JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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KAPILABEN W/O SHANKARBHAI DESAIBHAI RATHODIYA & ORS.
Versus
JANI HARENDRAKUMAR CHIMANBHAI & ORS.
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Appearance:
Mr.TUSHAR S RAWAT(17260) for the Petitioner(s) No. 1,2,3
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CORAM:HONOURABLE Mr.JUSTICE MAULIK J.SHELAT
Date : 17/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr.Jigar Raval with learned
Advocate Mr.Tushar S. Rawat for the petitioners.
2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(A) Your Lordship may be pleased to admit and allow this petition.
(B) Your Lordship may be pleased to issue a writ of certiorari and or
any other appropriate writ order or direction for quashing and setting
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aside the impugned order dated 05.04.2025 passed by the Ld. 3rd Add.
Senior Civil Judge, Vadodara below the application for condonation of
delay in an application for restoration i.e. CMA no. 154/2024 and be
further pleased to allow the application for condonation of delay filed
by the Petitioners at Annexure-D.
(C) Pending hearing and till final disposal of this Petition Your
Lordship may be pleased to stay the implementation and execution of
the order dated 05.04.2025 Annexure-D passed by the Ld. 3rd Add.
Senior Civil Judge, Vadodara below the application for condonation of
delay in an Application for Restoration i.e. CMA/154/2024.
(D) Any other relief deemed just and proper may please be granted in
the interest of justice."
3. As far as possible, the parties will be referred to as per their
original positions before the Trial Court.
4. The short facts:
4.1. The petitioners herein are original plaintiffs who instituted
Regular Civil Suit No.308 of 2011 through their power of
attorney against the respondents herein. The suit was filed
seeking declaration and injunction to the effect that by virtue
of alleged Will of the predecessor of the plaintiffs in favour of
the respondents-defendants, thereby a revenue entry dated
5th May, 1997 mutated in their favour would not entitle the
defendants to interfere with the possession of the plaintiffs in
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relation to the suit land in question and so also questioned
such revenue entry.
4.2. The suit came to be dismissed for default on 23rd January,
2017. The restoration application came to be filed by the
plaintiffs only in the month of May 2024, thereby, there was a
delay of about 7 years and 6 months in filing such restoration
application. The plaintiffs appear to have filed delay
application which came to be rejected by the Trial Court vide
its order dated 5th April, 2025, which is impugned in the
present writ application.
5. SUBMISSIONS OF THE PETITIONERS-PLAINTIFFS:
5.1. Learned Advocate Mr.Raval appearing for the petitioners
would submit that the Trial court has committed serious
error of law while rejecting the impugned delay application,
inasmuch as a very hyper-technical approach was taken by
the Trial Court while adjudicating the delay application.
5.2. Learned Advocate Mr.Raval would submit that the petitioners
are coming from humble background having no knowledge
about the procedure of law and so also not literate and as
such, petitioner No.2 got paralyzed, considering the
aforesaid background of facts, the delay in filing the
restoration application ought to have been condoned by the
Trial Court.
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5.3. Learned Advocate Mr.Raval would submit that though the
suit was filed by the petitioners, but it was filed through their
power of attorney and as such, the petitioners were not
aware about even the suit number which they came to know
only in the year 2023 when the respondents have instituted
revenue proceedings by raising objection in one of the
revenue proceedings in the year 2023.
5.4. Learned Advocate Mr.Raval would further submit that the
petitioners have obtained certified copy of order of
dismissing the suit on 29th August, 2023, although filed
restoration application in the month of May 2024, but due to
facts which are mentioned in the delay application and
inasmuch as after getting such information and documents,
due to illness of petitioner No.2 and poor financial
background of the petitioners, they could not file the
restoration application immediately on receipt of such
information.
5.5. Learned Advocate Mr.Raval would further submit that as per
settled legal position of law, sufficient cause requires to be
construed liberally and a hyper-technical approach requires
to be avoided, thereby, the Court can advance justice to the
party.
5.6. Learned Advocate Mr.Raval would also submit that there is a
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good case on merits and inasmuch as the Will of the
predecessor of the petitioners is a got-up one and as such in
the revenue proceedings, the petitioners could satisfy the
Revenue Authority, thereby the entry which was mutated on
5th May, 1997, in favour of the defendants-respondents was
cancelled.
5.7. So, learned Advocate Mr.Raval would submit that if by paying
reasonable costs or if any condition put upon the petitioners,
this Court may condone the delay by entertaining the present
writ application.
5.8. To buttress his arguments, learned Advocate Mr.Raval would
rely upon the following two decisions, which are as under:
(i) State (NCT of Delhi) V/s. Ahmed Jaan reported in
(2008) 14 Supreme Court Cases 582;
(ii) Deceased Madhji Koyaji Zala Through His Heirs &
Legal Representatives V/s. Mangaji Ghelaji Parmar and
others reported in 2003 (0) AIJEL-HC 202837.
5.9. So, making the above submissions, learned Advocate
Mr.Raval would request this Court to allow this writ
application.
6. No other and further submissions are made.
POINT FOR DETERMINATION
7. The short question falls for my consideration as to whether
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any gross error of law and/or any jurisdictional error
committed by the trial court while rejecting the impugned
delay application, wherein the petitioners sought
condonation of delay of about 7 years and 6 months in filing
the restoration application?
ANALYSIS
8. It is now well settled legal position of law that the cause of
delay is material and not the length of delay. The court while
adjudicating a delay application requires to see the
explanation coming forth from the applicant, which must
disclosed sufficient cause. I have minutely gone through the
delay application filed by the petitioners/plaintiffs with their
restoration application. There are so many loopholes and
lacunae while explaining such huge inordinate delay and as
such contradictory statements made in the impugned delay
application, which can be observed and summarized as
under:
(i) The petitioners have stated that due to their illiteracy,
through the help of power of attorney, the suit was
instituted in the year 2011. Nonetheless, in para-5 of
delay application, it has been categorically stated that
entire suit was handled by power of attorney, but the
petitioners (applicants) were getting updates from their
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power of attorney at regular interval.
(ii) It is further stated in the very para that the petitioners
came to know about the death of their power of
attorney holder in December 2018. According to
applicants as stated in the application that they were
not aware about the status of the suit as nothing was
given by the power of attorney to them. As observed
above, they were getting regular updates about the suit
from their power of attorney. It would difficult to
swallow that petitioners would not aware even suit
number.
(iii) According to averments made in para-5 of delay
application, in March 2019, there was the pandemic
called COVID-19 came and there was a lockdown in the
entire world and as such due to such situation, till
2022, the petitioners could not gather any information.
This is nothing but a factually incorrect statement made
by the petitioners in para-5 of the delay application just
to excuse the period between December 2018 till 2022
when they have instituted a revenue proceeding against
defendants being RTS Appeal No.24 of 2022 (Annexure-
E). It is undisputed that COVID-19 badly affected world
only in March, 2020 onwards till 2022 but not year
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2019. When such a false statement has been made by
petitioners, only on this ground alone, the Court can
reject the delay application.
(iv) It is further stated in para-6 of the delay application
that on getting a notice from a Regular Civil Suit
No.477 of 2021 filed by one Babubhai Parmar against
petitioners, as per the advice received from one
Hiteshpuri Goswami and after getting his advice, a
revenue proceeding was instituted by the petitioners
against the respondents i.e. RTS Appeal No. 24 of 2022.
At that stage also, if the petitioners were desirous to
get information about the status of their suit, they could
have easily get it but did not get status of suit check. If
they have chosen to file revenue proceedings before the
Deputy Collector, which is a quasi-judicial proceeding,
they could have easily filed restoration application.
Nonetheless, it has not been done by the petitioners
reasons best known to them.
(v) The petitioners have further tried to explain the fact in
para-7 of the delay application that when they
succeeded in revenue proceedings and entry in their
name was mutated by the Revenue Authority, the
respondents have objected to such entry by way of RTS
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Case No. 7 of 2023, wherein, for the first time, they
came to know about the dismissal of their suit. The
petitioners have categorically stated that they have
received the certified copy of the dismissal order and
other papers of their suit on 29th August, 2023. For
reasons best known to them, the restoration application
was filed in the month of May 2024. So, there is also
further delay of around 8 months in filing restoration
application. This shows how causal and negligent
manner, petitioners were pursuing their legal remedy
in the court of law. As such, the explanation coming
forth from the side of the petitioners that due to their
poor financial condition and paralysis of petitioner
No.2, which caused delay in filing restoration
application, even after getting the requisite documents,
on 29 August, 2023, is concerned, such explanation is
not acceptable because such situation was prevailing
with the petitioners since inception and so also about
the factum of paralysis of petitioner No.2 has existed
since 2021 as stated in para-6 of the delay application
and despite that they have filed aforesaid revenue
proceeding which are quasi-judicial.
9. Thus, after analyzing the aforesaid facts which are stated in
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the delay application by the petitioners, only one conclusion
can be drawn that there was a sheer negligence on the part
of the petitioners in neither pursuing nor looking after their
own suit, filed in the year 2011 seeking only prohibitory
injunction against the defendants. So far as the merit of the
matter is concerned, it is now well settled legal position of
law that while adjudicating delay application, the Court
cannot go into the merit of the matter. [See H. Guruswamy &
Ors. V/s. A. Krishnaiah Since Deceased By Lrs. 2025 INSC 53
(para- 17)]
10. When the Court found that the petitioners are grossly
negligent in pursuing their remedy and the explanation which
has coming forward in the delay application is nothing but an
excuse and has not made out any sufficient cause, in such
situation, by imposing any condition upon the petitioners, can
the delay be condoned? Answer would be emphatic 'No'.
11. The issue germane in the present delay application is more or
less settled by the Honourable Supreme Court of India. Few
relevant such decisions referred herein below to better
understand contours of controversy germen in the matter.
12. 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
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Deceased By Lrs. reported in Civil Appeal No. 317 of 2025
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
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opposition of the other side is equally balanced that the court may
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)
12.1. 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:-
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"The necessity for enacting periods of limitation is to ensure that
actions are commenced within a particular period, firstly to assure the
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)
12.2 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
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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-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.
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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 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)
12.3 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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12.4 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)
13. Thus, in view of the aforesaid position of law, if applied to the
facts of the case, no condition can be put upon the petitioners
to condone the delay, as the Court found them negligent in
filing restoration application and in view of the aforesaid
position of law, delay in such situation cannot be condoned,
which is correctly not condoned by the Trial Court. I am as
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such in complete agreement with the view taken by Trial
Court which is neither erroneous nor perverse.
14. As far as two the decisions which are cited by the learned
Advocate Mr.Raval are concerned, there is no cavil that the
facts which are stated by the applicant in the delay
application may not be doubted by the Court. But as stated
herein above and after analyzing the explanation coming
forth in the delay application, the Court found that, there is
neither any sufficient cause made out nor any reason
available with the Court to condone such gross and
inordinate delay occurred due to sheer negligence on the
part of the petitioners. So, both these decisions would not
help the case of the petitioners anymore. Nevertheless,
learned advocate Mr.Raval is unable to countenance the ratio
of aforesaid recent past decisions of Hon'ble Apex Court.
15. Before parting, I would like to observe that it is now well
settled legal position of law that mere error of law in passing
any order by the Civil Court would not be a ground to
interfere with the order passed by the Civil Court while
exercising power under Article 227 of the Constitution of
India by this Court unless such order is either erroneous,
perverse, arbitrary and/or contrary to the provisions of law
and or made without jurisdiction. The petitioners unable to
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make out any of such grounds in their present writ
application and as such none of the said ingredients have
been found present in the case on hand. [See - (i) Sameer
Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal,
reported in 2013 (9) SCC 374 (Para 6 and 7) and (ii) Garment
Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181
(Para 15 and 16)]
CONCLUSION
16. The upshot of the aforesaid observations, discussions and
reasons would lead to only one conclusion that there is no
merit in the writ application which requires to be dismissed,
which is hereby dismissed. No order as to costs.
(MAULIK J.SHELAT,J)
Nilesh
