Gujarat High Court
Shri Chamunda Constructions Through ... vs Paschim Gujarat Vij Company Ltd. ... on 23 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8104 of 2025
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SHRI CHAMUNDA CONSTRUCTIONS THROUGH ITS PROPRIETOR
AMRUTBHAI KANJIBHAI RATHOD
Versus
PASCHIM GUJARAT VIJ COMPANY LTD. (PGVCL) & ANR.
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Appearance:
MR. VISHAL P THAKKER(7079) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/06/2025
ORAL ORDER
1. Heard learned advocate Mr. Vishal P. Thakkar for the
petitioner.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"A) YOUR LORDSHIPS may be pleased to quash and set aside the
order dated 16.04.2025, in Civil Misc Application No 52 of 2024 (Ann
- A) passed by the learned 2nd Additional District Court, Bhavnagar in
the said application;
b) YOUR LORDSHIPS may be pleased to hold that the condonation of
delay of 535 days was contrary to law and unjustified in the facts of the
case;
C) YOUR LORDSHIPS may be pleased to stay the operation,
implementation, and further proceedings in nature of First Appeal or
any other proceedings filed before concerned court, against the
impugned order dated 16.04.2025, in Civil Misc. Application No 52 of
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2024 (Ann - A) passed by the learned 2nd Additional District Court,
Bhavnagar.
d) YOUR LORDSHIPS may be pleased to pass such other and further
orders as may be deemed just and proper in the interest of justice."
3. The parties will be referred to as per their original position
before the Trial Court.
4. The short facts of the case:
4.1. The petitioner herein is the original respondent-defendant,
whereas the respondent herein is the original appellant-
plaintiff, who preferred an appeal before the District Court,
challenging the judgment and decree dated 18/11/2022,
passed by the Principal Senior Civil Judge, Palitana in
Special Civil Suit No. 65 of 2017 (Old Special Civil Suit No.
97 of 2017), wherein there was delay of 535 days in filing
such appeal.
4.2. The petitioner has opposed such delay in filing the appeal.
After hearing the parties to impugned delay application, the
Appellate Court, vide its judgment and order dated 16th
April, 2025, condoned the delay in filing the appeal albeit,
with costs.
4.3. Feeling aggrieved and dissatisfied with the aforesaid order
passed by the Appellate Court, the respondent to such
appeal has preferred the present writ application.
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5. SUBMISSION OF PETITIONER - DEFENDANT
5.1. Learned Advocate Mr. Thakker would submit that the
impugned order, whereby the Appellate Court has condoned
such huge delay of 535 days in filing the appeal without any
sufficient cause being made out by the appellant, requires to
be interfered with by this Court.
5.2. Learned advocate Mr. Thakker would submit that, except
procedural delay, there is nothing on record to show that by
any sufficient cause, the respondent was prevented in filing
the appeal.
5.3. Learned advocate Mr. Thakker would further submit that
the discretion which was available with the Appellate Court
was not correctly exercised and by overlooking the facts on
record and the objections of the petitioner herein, it has
condoned the delay.
5.4. Learned advocate Mr. Thakker would emphasized on ground
'D' and 'F' of the present writ application, whereby he would
submit that as per the settled legal position of law, when
there is an inordinate delay and lacking sufficient cause, no
delay should have been condoned by the Court.
5.5. Lastly, learned advocate Mr. Thakker would submit that as
such, there is no merit in the appeal and there is no error
committed by the Trial Court while deciding the suit in
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favour of the petitioner and so also, the delay ought not to
have been condoned.
5.6. Making the above submission, he is requesting this Court to
allow the present writ application.
6. POINT FOR DETERMINATION
6.1. The short question which falls for my consideration as to
whether the discretion used by the appellate court, while
condoning the delay of 535 days in filing the appeal at the
instance of the respondent, is unjust, improper and or
arbitrary and Whether any irregularity and/or illegality was
committed by the appellate court in condoning such delay in
filing the appeal?
ANALYSIS
7. The respondent has challenged the judgment and decree
passed by the trial court, whereby the suit for damages
instituted by the respondent against petitioner was
dismissed. The suit was for claiming damages for
Rs.29,15,920/-.
8. The suit was dismissed on 18/11/2022, whereas the delay
application appears to have been filed in 09/05/2024, in an
appeal which was filed under Order 41, Rule 3A of the CPC,
whereby the respondent herein sought condonation of a
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delay of 535 days in filing the said appeal.
9. The cause for the delay is narrated in para-4 of the
impugned delay application, wherein it has been clearly
stated that after obtaining the copy of the judgment and
decree and getting the opinion of the panel advocate on
07/12/2023, the matter was then sent to the divisional office
for getting permission to file an appeal before the concerned
District Court and eventually, upon getting such permission,
the appeal was filed.
10. The respondent is a public sector undertaking, which needs
to require appropriate legal opinion as well as permission
from the competent authority and such process would
always takes some time.
11. Nonetheless, if there was any deliberate delay and or any
inordinate delay on the part of the respondent company,
same could have been viewed differently. However, so far as
case on hand, there is nothing on record which can be
pointed out to this Court that there was any mala fides or
dilatory tactics on the part of the respondent to file the
appeal after a delay of 535 days.
12. With the aforesaid facts and circumstances, the Appellate
Court has exercised its discretion in favour of the
respondent, thereby condoned the delay of 535 days in filing
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the appeal.
13. The appellate court has referred several decisions of the
Honourable Supreme Court while condoning the delay, more
particularly, the last in point of time, in a case of Inder
Singh V/s. State of Madhya Pradesh reported in (2025)
SCC Online SC 600, held as under:
"14.There can be no quarrel on the settled principle of law that delay cannot
be condoned without sufficient cause, but a major aspect which has to be kept
in mind is that, if in a particular case, the merits have to be examined, it
should not be scuttled merely on the basis of limitation."
(emphasis supplied)
14. The term "sufficient cause" must be assessed on a case-by-
case basis, as no strait jacket and or fixed formula can be
applied. It is well-established that a liberal approach must
be taken when considering sufficient cause to protect the
rights of the parties. At the same time, it is also well-settled
that a negligent or dilatory tactics used by party thereby to
prolong litigation cannot be granted indulgence by the
court.
15. Concerning the decisions relied upon by the petitioner,
there can not be and should not be any disagreement with
the principles laid down therein that too by Hon'ble Apex
Court which is otherwise binding to me. Nevertheless, in the
present case, after noticing the fact that due to procedure of
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respondent company, it took time by respondent herein to
file appeal and there is no malafide attributable to the
officers of respondent which is government company, in
such circumstances, if the discretion used by appellate court
in favour of the respondent by condoning the delay does not
suffers from any gross illegality, material irregularity and or
jurisdictional error. The discretion used by trial court can
not by any stretch arbitrary in nature and would not used
dehors provisions of law.
16. Now, it is no more in dispute as well settled legal position of
law that once discretion used by a court in favour of an
applicant, thereby condoned the delay, the same may not be
interfered with by higher Court very casually and criteria is
different in a case where delay has been condoned and such
an order has been challenged, vis-a-vis, a case where delay
is not condoned and such order has been challenged before
this Court.
17. To better understand such aspect of the case, it is apt to
refer and rely upon the following passages of the
Honourable Supreme Court in a case of Sheo Raj Singh
(Deceased) Through LRS & ORS v. Union of India
reported in 2023 10 SCC 531, held as under:-
"29. Considering the aforementioned decisions, there cannot be any
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quarrel that this Court has stepped in to ensure that substantive rights of
private parties and the State are not defeated at the threshold simply due
to technical considerations of delay. However, these decisions
notwithstanding, we reiterate that condonation of delay being a
discretionary power available to courts, exercise of discretion must
necessarily depend upon the sufficiency of the cause shown and the
degree of acceptability of the explanation, the length of delay being
immaterial. Sometimes, due to want of sufficient cause being shown or
an acceptable explanation being proffered, delay of the shortest range
may not be condoned whereas, in certain other cases, delay of long
periods can be condoned if the explanation is satisfactory and acceptable.
Of course, the courts must distinguish between an 'explanation' and an
'excuse'. An 'explanation' is designed to give someone all of the facts and
lay out the cause for something. It helps clarify the circumstances of a
particular event and allows the person to point out that something that
has happened is not his fault, if it is really not his fault. Care must
however be taken to distinguish an 'explanation' from an 'excuse'.
Although people tend to see 'explanation' and 'excuse' as the same thing
and struggle to find out the difference between the two, there is a
distinction which, though fine, is real. An 'excuse' is often offered by a
person to deny responsibility and consequences when under attack. It is
sort of a defensive action. Calling something as just an 'excuse' would
imply that the explanation proffered is believed not to be true. Thus said,
there is no formula that caters to all situations and, therefore, each case
for condonation of delay based on existence or absence of sufficient cause
has to be decided on its own facts. At this stage, we cannot but lament
that it is only excuses, and not explanations, that are more often accepted
for condonation of long delays to safeguard public interest from those
hidden forces whose sole agenda is to ensure that a meritorious claim
does not reach the higher courts for adjudication.
30. 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
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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".
31. The order under challenge in this appeal is dated 21st December 2011. It
was rendered at a point of time when the decisions in Mst. Katiji (supra),
Ramegowda (supra), Chandra Mani (supra), K.V. Ayisumma (supra) and
Lipok AO (supra) were holding the field. It is not that the said decisions do
not hold the field now, having been overruled by any subsequent decision.
Although there have been some decisions in the recent past [State of M.P. v.
Bherulal 14 is one such decision apart from University of Delhi (supra)]
which have not accepted governmental lethargy, tardiness and indolence in
presenting appeals within time as sufficient cause for condonation of delay,
yet, the exercise of discretion by the High Court has to be tested on the anvil
of the liberal and justice oriented approach expounded in the aforesaid
decisions which have been referred to above. We find that the High Court in
the present case assigned the following reasons in support of its order:
a. The law of limitation was founded on public policy, and that some lapse on
the part of a litigant, by itself, would not be sufficient to deny condonation of
delay as the same could cause miscarriage of justice.
b. The expression sufficient cause is elastic enough for courts to do
substantial justice. Further, when substantial justice and technical
considerations are pitted against one another, the former would prevail.
c. It is upon the courts to consider the sufficiency of cause shown for the
delay, and the length of delay is not always decisive while exercising
discretion in such matters if the delay is properly explained. Further, the
merits of a claim were also to be considered when deciding such applications
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for condonation of delay.
d. Further, a distinction should be drawn between inordinate unexplained
delay and explained delay, where in the present case, the first respondent had
sufficiently explained the delay on account of negligence on part of the
government functionaries and the government counsel on record before the
Reference Court.
e. The officer responsible for the negligence would be liable to suffer and not
public interest through the State. The High Court felt inclined to take a
pragmatic view since the negligence therein did not border on callousness.
32. Given these reasons, we do not consider discretion to have been
exercised by the High Court in an arbitrary manner. The order under
challenge had to be a clearly wrong order so as to be liable for
interference, which it is not."
(emphasis supplied)
18. Likewise, in a case of N BALAKRISHNAN V/S M
KRISHNAMURTHY reported in 1998 (7) SCC 123 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
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superior Court to come to its own finding even untrammeled by the
conclusion of the lower Court."
(emphasis supplied)
19. Having so observed herein above, the peculiar facts and
circumstances under which delay was condoned by
appellate court in present case, and keeping other factors in
mind as referred to and noticed hereinabove, as well as the
ratio of the said decisions of Honourable Supreme Court of
India in relation to scope of interference of this Court
against granting delay application by appellate court, this
Court would not like to interfere with the reasonable and
equitable order passed by the Court while condoning the
delay in filing the regular appeal which is otherwise
substantive legal right of litigant can not be taken away
lightly.
20. Even otherwise, considering the scope and ambit of power
of this Court while exercising its supervisory jurisdiction
under Article 227 of Constitution of India and following ratio
of decisions of the Honourable Supreme Court in the case of
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), if it applied to the facts
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of present case, this Court would not like to interfere with
the impugned order passed by Appellate Court while
exercising its power under Article 227 of the Constitution of
India
CONCLUSION
21. Thus, in view of the aforesaid facts and circumstances and
the position of law stand as on date, I am of the view that
the discretion which has been used by the appellate court in
favour of the respondent, whereby condoning the delay of
535 days in filing the appeal, is neither mala fide nor
arbitrary and inasmuch as, there is no perversity in
exercising such discretion in favour of the respondent.
22. Thus, upshot of the aforesaid special observation and
reasons, the present writ application lacks merit, requires to
be rejected. Accordingly, it is hereby rejected. No order as
to costs.
(MAULIK J.SHELAT,J)
Nilesh
