Gujarat High Court
Dineshbhai Dahyabhai Patel vs Becharbhai Bhikhabhai Patel on 19 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7538 of 2024
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DINESHBHAI DAHYABHAI PATEL
Versus
BECHARBHAI BHIKHABHAI PATEL
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Appearance:
MR DHARM K RAVAL(10689) for the Petitioner(s) No. 1
MR NEERAJ SONI(3433) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 19/06/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate, Mr.Neeraj
Soni, waives service of rule on behalf of the respondent. With
the consent of the parties, the matter is taken up for final
hearing.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following relief:
"A) Admit and allow this petition.
B) Issue a writ of Certiorari and/or any other appropriate writ, order
or direction in the nature of Certiorari quashing and setting aside
the order dated 09.01.2024 passed by the learned 3rd Additional
District Judge, Sabarkantha at Himmatnagar in Civil Misc.
Application No. 24/2023 (Annexure-A) and also be further pleased
to allow the application for condonation of delay in preferring the
Regular Civil Appeal and thereby further pleased to direct the Ld.
District Court to decide the Regular Civil Appeal on its own merits.
C) Pending admission, hearing and/or final disposal of this petition,
Your Lordships may be pleased to stay the implementation and
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Execution of the Judgment and Decree 18.12.2019 (Annexure-B)
passed in Regular Civil Suit No. 02/2019 in the interest of justice;
D) Such other and further orders as Your Lordships may deem
just, fit and expedient be passed in favour of the petitioner."
3. As far as possible, the parties will be referred to as per
their original positions in the suit.
4. The short facts of the case:-
4.1. The petitioner herein is the original defendant of
Special Civil Suit No. 2 of 2019, instituted by the respondent
for the recovery of Rs.8,00,000/- with interest before the
Principal Senior Civil Judge, Sabarkantha at Himmatnagar.
4.2. After recording evidence and hearing the plaintiff, the
Trial Court has decreed the suit in favour of the plaintiff by
the Trial Court, vide its judgment and decree dated
18.12.2019.
4.3. The defendant has challenged the said judgment and
decree passed by the Trial Court by filing a Regular Civil
Appeal under Order 41 of the Civil Procedure Code, 1908
(hereinafter referred to as "the CPC") before the Appellate
Court. As there was a delay of more than three years in filing
the appeal, a delay application, being Civil Miscellaneous
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Application No. 24 of 2023, came to be filed in the appeal.
The plaintiff has contested the delay application by filing his
reply. After hearing the parties, the Appellate Court, vide its
order dated 09.01.2024, rejected the delay application.
4.4. Being aggrieved and dissatisfied with the impugned
order passed by the Appellate Court, the defendant has
preferred the present writ application.
5. SUBMISSION OF THE APPLICANT-DEFENDANT
5.1. Learned advocate Mr. Dharm K. Raval, appearing for
the petitioner, would submit that the Appellate Court has
committed a serious error of law by not allowing the delay
application filed by the defendant.
5.2. It is further submitted that the Appellate Court has not
appreciated the grounds set out in the delay application, which
resulted in a miscarriage of justice.
5.3. Learned advocate Mr. Raval would further submit that
the defendant was prevented by a cause which was beyond his
control, whereby he was not able to submit his appeal in time.
5.4. It is submitted that the impugned judgment and decree
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in appeal was passed by the Trial Court in the month of
December, 2019 and, within a short period of time, the
COVID-19 pandemic erupted in India, whereby the defendant
was not able to meet his lawyer and/or was not able to get
legal advice at the relevant time.
5.5. It is further submitted that the defendant was facing
other criminal proceedings in connection with different matters,
whereby he was behind bars for a quite long time for the
period between 20th May 2021 to 25th November 2022.
5.6. To substantiate such an argument, a copy of jail
remarks issued by the concerned Jail Official, District
Himmatnagar, was submitted to this Court. Such jail remarks
will be referred to in a later part of this judgment.
5.7. Learned advocate Mr. Raval would further submit that
due to the aforesaid reasons and situations which got out of
the control of the defendant, he could not file the appeal in
time.
5.8. Nonetheless, at no point of time, the defendant had
ever dropped any idea of not to file the appeal. He would
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further submit that due to the aforesaid facts, the defendant
was unable to arrange funds to file the appeal, having
languished in jail for a quite long time.
5.9. Learned advocate Mr. Raval would further submit that
as per the settled legal position of law, while considering a
delay application, a cause which prevented the applicant from
filing the appeal in time requires to be construed liberally, and
a hyper-technical approach ought to have been avoided.
5.10. Lastly, learned advocate Mr. Raval would submit that
in pursuance of the order passed by this Court on 08.05.2025,
the petitioner-defendant has already deposited a sum of
Rs.3,00,000/- with the Executing Court and, under instructions,
made a statement that the petitioner will further deposit a sum
of Rs.2,00,000/- within one month from today to show his
bona fides to pursue the legal remedy available to him as
petitioner has never played any dilatory tactics to delay
proceeding.
5.11. Making the above submissions, learned advocate Mr.
Raval would request this Court to allow the present writ
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application.
6. SUBMISSION OF THE RESPONDENT-PLAINTIFF
6.1. Per contra, learned advocate Mr. Neeraj Soni,
appearing for the respondent-original plaintiff, has vehemently
opposed present petition having argued that there is no merit
in the present writ application, as there is no error, much less
any gross error of law, committed by the Appellate Court
while rejecting the delay application.
6.2. Learned advocate Mr. Soni would further submit that
the plaintiff is aged about 75 years old, facing so much
hardship, and by way of this litigation, he has to defend it for
the default of the petitioner.
6.3. Learned advocate Mr. Soni would further submit that
the defendant could have challenged the impugned judgment
and decree passed by the Trial Court within the stipulated
time, and the reasons which are assigned by the defendant in
the impugned delay application are nothing but an excuse, and
as such, no sufficient cause has been made out.
6.4. Learned advocate Mr. Soni would further submit that
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when the defendant is faced with a money decree, he is
required to deposit the entire decreetal amount, and no
indulgence may be shown by this Court in favour of the
defendant in any respect.
6.5. Lastly, learned advocate Mr. Soni would respectfully
submit that even if this Court is inclined to accept the relief as
prayed for in the present application, the original plaintiff may
be allowed to withdraw the amount so deposited by the
defendant and any amount which this Court deems it
appropriate to be deposited by the defendant with the
Executing Court.
6.6. Making the above submissions, learned advocate Mr.
Soni would request this Court to reject the present writ
application.
7. No other and further submissions are being made by both
sides.
8. Heard learned advocate Mr. Raval, appearing for the
petitioner- original defendant, and learned advocate Mr. Neeraj
Soni, appearing for the respondent-original plaintiff at length.
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9. ANALYSIS
10. The short controversy involved in the present matter is
with regard to the non-condonation of the delay of three
years, two months, and 19 days in filing the regular appeal by
the defendant, as the Appellate Court rejected the impugned
delay application filed in the appeal.
11. The facts which are noted hereinabove are not much in
dispute. It is true that there was a long delay in filing the
appeal, but as per the settled legal position of law, merely
because there is a long delay in filing the matter would not
ipso facto become a ground not to condone the delay if
otherwise, sufficient cause made out by the applicant in filing
the matter; the Court is required to consider the explanation
made by the applicant in a liberal manner whereby it can
advance justice to the parties.
12. While appreciating the averments made in the impugned
delay application, coupled with the fact that after the passing
of the impugned judgment and decree of the Trial Court in
appeal that the COVID-19 situation erupted in the entire
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country, which had paralyzed the normal routine of everyone,
including the Court. This period of COVID-19 is an
extraordinary situation wherein every litigant would first try to
safeguard the interest of himself and his family members rather
than focusing on pending litigation. Such an aspect of the
matter was completely lost sight of by the Appellate Court
while adjudicating the impugned delay application.
13. Furthermore, by way of jail remarks, which were readily
produced for the perusal of this Court, having the original seal
of the concerned jail officials and signature, would clearly
indicates that for a quite long time, the defendant incarcerated
in jail, i.e., from 20th May, 2021 to 25th November,2022. When
defendant remained in jail for such a long time and was later
on released from jail, it would be difficult for defendant to
immediately approach the Court for filing an appeal; rather, on
gaining financial and mental strength, the defendant appears to
have filed the appeal before the Appellate Court in the month
of April 2023.
14. Considering these peculiar facts and circumstances of the
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case, by no stretch of the imagination, it can be said to be
gross negligence and/or negligence on the part of the
defendant in filing the appeal belately.
It is now a well-settled legal position of law that while
considering an application filed under Section 5 of the
Limitation Act, a liberal approach should be adopted by the
Court, thereby, it can advance justice and ordinarily try to
avoid a pedantic approach, which frustrates the administration
of justice.
15. Even the applicant is not required to explain the day-to-
day delay in approaching the court of law, and when a
sufficient cause is made out by the applicant, which is a cause
that prevented the applicant from filing the matter in time,
such an explanation coming forth from the applicant, unless
proved to be wrong by the other side, is required to be
accepted.
16. At this stage, it would be apposite to refer and rely upon
decision of Honourable Supreme Court of India in a case of N.
Balakrishnan V/s M. Krishnamuthy reported in AIR 1998 SC
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3222 wherein held thus:-
"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.
10. The reason for such a different stance is thus : The
primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice.
Time limit fixed for approaching the Court in different
situations is not because on the expiry of such time a bad
cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right
of parties. They are meant to see that parties do not
resort to dilatory tactics, but seek their remedy promptly.
The object of providing a legal remedy is to repair the
damage caused by reason of legal injury. Law of limitation
fixes a life span for such legal remedy for the redress of
the legal injury so suffered. Time is precious and the
wasted time would never revisit. During efflux of time
newer causes would sprout up necessitating newer
persons to seek legal remedy by approaching the courts.
So a life span must be fixed for each remedy. Unending
period for launching the remedy may lead to unending
uncertainty and consequential anarchy. Law of limitation
is thus founded on public policy. It is enshrined in the
maxim Interest reipublicae up sit finis litium (it is for the
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general welfare that a period be put to litigation). Rules of
limitation are not meant to destroy the right of the
parties. They are meant to see that parties do not resort
to dilatory tactics but seek their remedy promptly. The
idea is that every legal remedy must be kept alive for a
legislatively fixed period of time.
12. A court knows that refusal to condone delay
would result in foreclosing a suitor from putting
forth his cause. There is no presumption that delay
in approaching the court is always deliberate. This
Court has held that the words "sufficient cause" under
Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice vide
Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575
and State of West Bengal v. The Administrator, Howrah
Muni-cipality, AIR 1972 SC 749.
13. It must be remembered that in every case of
delay there can be some lapse on the part of the
litigant concerned. That alone is not enough to turn
down his plea and to shut the door against him. If
the explanation does not smack of mala fides or it
is not put-forth as part of a dilatory strategy the
Court must show utmost consideration to the
suitor. But when there is reasonable ground to think that
the delay was occasioned by the party deliberately to gain
time then the Court should lean against acceptance of the
explanation. While condoning delay the Court should not
forget the opposite party altogether. It must be borne in
mind that he is a loser and he too would have incurred
quite a large litigation expenses. It would be a salutary
guideline that when Courts condone the delay due
to laches on the part of the applicant the Court
shall compensate the opposite party for his loss."
(Emphasis supplied)
17. At the same time, the interest of the
judgment-creditor/decree-holder also requires to be taken care
of by the Court, and in this peculiar facts and circumstances of
the case, on an appropriate condition, the Appellate Court
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could have condoned the delay which was not done resulted
into failure of justice. This Court is of the view that the
defendant has made out the case for condonation of delay, as
sufficient cause existed which prevented the defendant in filing
the appeal with a delay of more than three years.
18. Having so observed, the defendant has already deposited
a sum of Rs.3,00,000/- with the Executing Court as per the
order dated 08.05.2025 passed by this Court in the present
writ application, and further, the defendant is ready and
willing to deposit a sum of Rs.2,00,000/- with the Executing
Court, in all Rs.5,00,000/- thereby shown his bonafide. This
Court is of the view that in this set of peculiar facts and
circumstances of the case, on imposing a condition upon the
defendant to further deposit a sum of Rs.2,00,000/- within a
period of 30 days from today, the impugned delay application
requires to be allowed.
19. CONCLUSION
19.1. The upshot of the aforesaid observations, discussion,
and reasons leads to only one conclusion that the order
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impugned in the writ application is not only erroneous and
perverse but also contrary to settled principles of law and
requires to be interfered with by this Court while exercising its
power under Article 227 of the Constitution of India. [See
Waryam Singh v. Amarnath, AIR 1954 SC 215]
19.2. The impugned order dated 09.01.2024, passed by the
3rd Additional District Judge, Sabarkantha at Himmatnagar, in
Civil Miscellaneous Application No. 24 of 2023, is hereby
quashed and set aside. Consequently, the impugned delay
application filed by the defendant, being Civil Miscellaneous
Application No. 24 of 2023, is hereby allowed on the condition
that the defendant shall have to deposit, in all, Rs.5,00,000/-
with the Executing Court and, as the defendant has already
deposited Rs.3,00,000/-, the balance of Rs.2,00,000/- shall
have to be deposited within 30 days from today.
19.3. Once the defendant deposits the balance of
Rs.2,00,000/- with the Executing Court, it is open for the
plaintiff to withdraw Rs.5,00,000/- by submitting a usual
undertaking with the Executing Court that in a case where the
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defendant succeeds in his appeal and the impugned judgment
and decree is quashed and set aside, the plaintiff will return
Rs.5,00,000/- to the defendant.
19.4. If the defendant complies with the aforesaid condition
stipulated by this Court as a condition of condoning the delay,
the Appellate Court shall register his appeal and, after giving a
reasonable opportunity of hearing to all the parties concerned,
may decide it on its own merits in accordance with law.
19.5. It is further made clear that in a case where the
decree impugned in the present appeal stands modified and the
plaintiff is entitled to receive an amount from the defendant,
the amount which will be withdrawn by the plaintiff, i.e.,
Rs.5,00,000/-, will be adjusted against such decree as may be
passed by the Appellate Court.
19.6. Further, in a case where any excess amount is retained
by the plaintiff after adjusting the amount as per the decree
passed by the Appellate Court, the plaintiff will have to
refund/return such excess amount to the defendant.
19.7. Lastly, it is hereby observed that this Court has
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neither gone into nor examined the merits of the main claim,
and the Appellate Court shall have to decide the appeal on its
own merits without being influenced by any of the
observations made by this Court while passing this order.
20. In view of the aforesaid, the present writ application is
hereby allowed. Rule is made absolute to the aforesaid extent.
No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
