Gujarat High Court

Lalit Babulal Patel Partner Of Rishil ... vs Legal Heirs Of Deceased Ranjanben ... on 24 June, 2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 13799 of 2024

                                                          With
                                     CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2025
                                    In R/SPECIAL CIVIL APPLICATION NO. 13799 of 2024
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                         LALIT BABULAL PATEL PARTNER OF RISHIL CORPORATION & ANR.
                                                  Versus
                         LEGAL HEIRS OF DECEASED RANJANBEN REVASHANKAR CHATT &
                                                   ORS.
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                       Appearance:
                       MR PARTHIV B SHAH(2678) for the Petitioner(s) No. 1,2
                       MR NV SOLANKI(860) for the Respondent(s) No. 1.1,1.2,1.3,1.4
                       UNSERVED EXPIRED (N) for the Respondent(s) No. 2,3
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                           Date : 24/06/2025

                                                               ORAL ORDER

ORDER IN CIVIL APPLICATION (FOR ORDERS) NO. 1 OF

1. Rule returnable forthwith. Learned Advocate,

Mr.N.V.Solanki waives service of Rule on behalf of the

opponents.

2. Heard learned Advocate Mr.Parthiv B. Shah for the

applicants and learned Advocate Mr.N.V.Solanki for the

opponents.

3. The present Civil application is filed seeking the deletion

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of Respondent Nos.2 and 3 from the main matter, i.e., Special

Civil Application No. 13799 of 2024.

4. Considering the submissions made and after going

through the averments made in the application, at the peril of

the applicants - petitioners, the request made in the present

application is accepted. The application is allowed in terms of

para 8(B). Rule is made absolute. Necessary amendment to be

carried out forthwith.

ORDER IN SPECIAL CIVIL APPLICATION NO. 13799 OF 2024

1. Rule returnable forthwith. Learned Advocate

Mr.N.V.Solanki waives service of Rule on behalf of Respondent

Nos. 1.1 to 1.4. The Respondent Nos.2 and 3 have already

been deleted as per the order passed by this Court in Civil

Application No. 1 of 2025.

2. The present application is filed under Article 227 of the

Constitution of India seeking the following relief:-

"A. YOUR LORDSHIPS be pleased to admit and allow this Special Civil Application, in the interest of justice;

B. YOUR LORDSHIPS be pleased to issue appropriate writ. order or direction and be pleased to quash and set aside the common

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order dated 05.07.2024 passed below Exh.21 and 22 by 6th Addl. District & Sessions Judge, Ahmedabad (Rural), Navrangpura, in Regular Civil Appeal No.46 of 2020, in the interest of justice;

C. YOUR LORDSHIPS be pleased to stay the further proceedings of Regular Civil Appeal No.46 of 2020, pending the admission, hearing and final disposal of this petition, in the interest of justice;

D. YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed proper by this Hon'ble Court;

3. The parties to the suit, as far as possible, will be referred to as per their original position in the suit."

4. THE SHORT FACTS OF THE CASE

4.1. The petitioners herein are original Defendant Nos. 1

and 2 / Respondent Nos. 1 and 2, whereas Respondent Nos.1.1

to 1.4 are legal heirs of the original plaintiff-appellant who

preferred Regular Civil Appeal No. 46 of 2020, thereby

challenging the judgment and decree dated 17.12.2019 passed

by the Principal Senior Civil Judge, Ahmedabad (Rural) in

Regular Civil Suit No. 639 of 1999.

4.2. The original plaintiff died during the pendency of the

appeal on 18.01.2023, and so, her legal heirs were required to

be brought on record, whereby the impugned applications

below Exhibits 21 and 22 were filed by her legal heirs, i.e.,

Respondent Nos. 1.1 to 1.4 herein, seeking condonation of a

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delay of 121 days in filing an application whereby sought their

substitution as the legal heirs of the original appellant,

respectively.

4.3. The Defendant Nos. 1 and 2 have opposed both

impugned applications contending, inter alia, that neither any

sufficient cause been made out by the applicants nor any

prayer for setting aside the abatement been made; in those

circumstances, the Appellate Court should not allow the

impugned applications.

4.4. After hearing the parties, the Appellate Court, by way

of its common order dated 05.07.2024, allowed both impugned

applications, whereby it has condoned the delay in filing the

application for bringing the legal heirs of the original sole

appellant on record and also set aside the abatement in filing

such application and further substituted/brought the legal heirs

of the original Appellant on the record of the appeal.

4.5. The Defendant Nos.1 and 2 have questioned the

common impugned order passed below Exhibits 21 and 22 by

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way of the filing of the present writ application.

5. SUBMISSIONS OF THE PETITIONER-DEFENDANT NOS. 1

AND 2

5.1. Learned Advocate Mr. Parthiv B. Shah would submit

that the impugned order is contrary to the mandatory

provisions of the Civil Procedure Code, 1908 (hereinafter

referred to as the 'CPC') and requires to be interfered with by

this Court while exercising its power under Article 227 of the

Constitution of India.

5.2. Learned Advocate Mr. Shah would further submit that

when it has been specifically pointed out and objected to by

the petitioners while opposing both impugned applications that

no prayer for setting aside the abatement was made in the

prayer clause of any of the impugned applications, the

impugned applications ought to have been rejected.

5.3. Learned Advocate Mr. Shah would further submit that

it is sine qua non to seek a prayer for setting aside the

abatement, and in the absence of such prayer, the Appellate

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Court could not have set aside the abatement in bringing the

legal heirs of the original appellant.

5.4. Learned Advocate Mr. Shah would further submit that

though there is a delay of 121 days in filing an application to

bring the legal heirs of the sole appellant, no sufficient cause

was made out by the applicants, and as such, an excuse was

stated in the delay application to the effect that the applicants

were engaged in the post-death ceremony of the sole appellant.

5.5. Learned Advocate Mr. Shah would further submit that

when the mandatory requirement of Order 22 of the CPC is

not adhered to by the applicants, no relief can be granted by

the Appellate Court, and as such, both impugned applications

were required to be rejected.

5.6. In support of his submissions, Learned Advocate Mr.

Shah would rely upon the decision of the Coordinate Bench of

this Court in the case of Makvana Udaji Jehaji and Ors. vs.

Makvana Parthiji Punjaji and Others, reported in 2012 (3) GLR

2354.

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5.7. Making the above submissions, Learned Advocate Mr.

Shah would request this Court to allow the present writ

application.

6. SUBMISSIONS OF RESPONDENT NOS. 1.1 TO 1.4

(ORIGINAL APPELLANTS)

6.1. Per Contra, learned Advocate Mr. N.V. Solanki,

appearing for the original applicants, who happen to be the

legal heirs of the original appellant, would submit that the

Appellate Court has rightly exercised its discretionary

jurisdiction in favor of the applicants, whereby it has not only

condoned the delay but also set aside the abatement having

not so filed the necessary application to bring the legal heirs

of the sole appellant in time and as such, this Court may not

interfere with such a well-reasoned order passed by the

Appellate Court.

6.2. Learned Advocate Mr. Solanki would further submit

that sufficient cause was made out by the applicants in their

delay application, and as such, as per the ritual in the society

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of the sole appellant, post-death ceremonies were to be

performed by the applicants, which took some time to

approach the Appellate Court by filing an application to bring

her legal heirs on record, which is neither mala fide nor any

dilatory tactic used by the applicants to delay the proceedings

in any manner whatsoever.

6.3. Learned Advocate Mr. Solanki would further submit

that once the discretion has been exercised by the Appellate

Court in favor of the applicants, thereby condoned the delay in

filing the application to bring the legal heirs of the sole

appellant, this Court may not interfere with such a

discretionary order passed by the Appellate Court, which

allowed both impugned applications.

6.4. Learned Advocate Mr. Solanki would further submit

that as such, while such prayers were made to condone the

delay, the applicants also requested the Appellate Court to pass

an appropriate order in the interest of justice, whereby the

Appellate Court has exercised its discretion after being satisfied

that sufficient cause was made out by the applicants in filing

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the application to bring the legal heirs of the sole appellant; so

also, it has set aside the abatement as the applicants could not

bring the necessary application in time.

6.5. Learned Advocate Mr. Solanki would further submit

that there is no mandatory requirement whereby the applicants

were supposed to file an independent application seeking the

setting aside of the abatement of the appeal, and when a case

was made out for condonation of delay and they also asked for

further relief as submitted hereinbefore. So, the Appellate

Court was well within its rights to consider the request of the

applicants in accordance with law.

6.6. To buttress his arguments, learned Advocate Mr.

Solanki has relied upon the decision of the Hon'ble Supreme

Court in the case of Om Prakash Gupta @ Lalloowa (now

deceased) and Others vs. Satish Chandra , reported in (2025)

SCC Online SC 291; 2025 INSC 183 (paras 22 and 23).

6.7. Heard learned Advocate Mr.Parthiv B. Shah for the

petitioners and learned Advocate Mr.N.V.Solanki for the

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respondent.

7. No other and further submissions are made.

8. POINT FOR DETERMINATION

8.1. The short question that falls for my consideration is

whether any gross error of law and/or any jurisdictional error

was committed by the Appellate Court while condoning the

delay and bringing the legal heirs of the sole appellant on

record and/or, in the absence of any prayer made by the

applicants for setting aside the abatement of the appeal, the

relief so granted by the Appellate Court can be said to be

exceeding the jurisdiction so vested in it?

9. ANALYSIS

10. The issue germane in the present application is no longer

remain res integra and has also been decided by the Hon'ble

Supreme Court in its catena of decisions, but not to burden

myself, the judgment relied upon by Learned Advocate Mr.

Solanki can be taken into account to answer the aforesaid

issue.

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11. In the case of Om Prakash Gupta (supra), the Hon'ble

Supreme Court of India has categorically observed that in the

absence of a prayer for setting aside the abatement made by

the applicants, the Trial Court is not powerless to grant such a

prayer, and if so granted, no error can be found on the part of

the court while setting aside the abatement of the proceeding.

To better understand such a dictum of the Hon'ble Supreme

Court, it would be profitable to refer to the following passages

of the decision of the Hon'ble Supreme Court in the case of

Om Prakash Gupta (supra), wherein it has been held, thus:-

"22. There is another equally important aspect, which merits our attention. The second appeal was restored by the High Court vide order dated 25th May, 2018. This order, restoring the second appeal, was recalled vide order dated 11th January 2019. The reason given was that, in the absence of an application praying for setting aside the abatement, the second appeal could not have been ordered to be restored.

23. We find it difficult to agree with such reasoning. When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice. We draw inspiration for such a conclusion, having read the decision in Mithailal Dalsangar Singh v. Annabai Devram Kini. This Court reiterated the need for a justice-oriented approach in such matters. Inter alia, it was held that prayer to bring on record heir(s)/legal representative(s) can also be construed as a prayer for setting aside the abatement. The relevant passage reads as under:

"8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be

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construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.

10. In the present case, ... such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal

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representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirety even though there was no specific prayer made and no specific order of the court passed in that behalf."

(emphasis supplied)

12. Thus, in view of the aforesaid pronouncement of law and

the recent decision of the Hon'ble Supreme Court in the case

of Om Prakash Gupta (supra), there is no scintilla of doubt in

my mind that no error has been committed by the Appellate

Court in setting aside the abatement, even though it was not

prayed for by Respondent Nos. 1.1 to 1.4 while submitting the

impugned applications. Albeit, an additional prayer made by

applicants to the effect that just and appropriate order in the

interest of justice be passed.

13. Thus, when there is a clear pronouncement of law by the

Hon'ble Supreme Court of India, any contrary decision if any

rendered by this Court, as relied upon by the learned Advocate

Mr. Shah appearing for the petitioner, i.e. Makvana Udaji

Jehaji (supra), would not be binding to this Court, as it is now

impliedly overruled by aforesaid decision of Hon'ble Supreme

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Court of India in a case of Om Prakash Gupta (supra), which

is directly on the issue germane in the present application.

14. So far as the second limb of argument of Learned

Advocate Mr. Shah, that there is no sufficient cause made out

by the applicants while seeking condonation of a delay of 121

days in filing the application to bring the legal heirs of the

sole appellant, is concerned, after appreciating the averments

made in the application, as well as considering the fact that

the approach of the court while adjudicating the delay

application is always liberal and not pedantic, and having so

appreciated the fact that the applicants were engaged in the

post-death ceremony of the sole appellant, condoning the delay

of 121 days in filing an appropriate application to bring her

legal heirs on record would not amount to exercising

discretionary power in an arbitrary manner, and as such, I do

not find any perversity on the part of the Appellate Court

while condoning the delay.

15. It is now a well-settled legal position that once a positive

discretion is exercised by the court while condoning the delay

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in filing any proceeding, the Appellate Court should not lightly

interfere with such discretion exercised by the court concerned

unless there is any erroneous, perverse and/or arbitrary

approach on the part of the court concerned to condone the

delay.

16. 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 while 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.

17. At this stage, it is apt to refer the following judgments

rendered by the Hon'ble Apex Court of India in the 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 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

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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 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".

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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 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)

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18. It is also apt to refer and rely upon the decision of

Hon'ble Supreme Court in 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 superior Court to come to its own finding even untrammeled by the conclusion of the lower Court."

(Emphasis supplied)

19. Having so observed, considering the peculiar facts and

circumstances under which delay was condoned, and keeping

other factors in mind as referred to and noticed hereinabove,

as well as the ratio of the said decisions of Hon'ble 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

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