Gujarat High Court

Dhirajlal Nathalal Gajera vs Pradipbhai Ganpatbhai Barot on 6 May, 2025

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                             C/CA/3869/2024                                     ORDER DATED: 06/05/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 3869 of
                                                   2024

                                   In F/CIVIL REVISION APPLICATION NO. 2874 of 2024

                      ==========================================================
                                           DHIRAJLAL NATHALAL GAJERA & ANR.
                                                        Versus
                                          PRADIPBHAI GANPATBHAI BAROT & ORS.
                      ==========================================================
                      Appearance:
                      ARCHITA M PRAJAPATI(8241) for the Applicant(s) No. 1,2
                      DELETED for the Respondent(s) No. 4
                      NOTICE SERVED for the Respondent(s) No. 2.1,2.2,2.3,2.4,2.5,3.1,3.2,3.3,5
                      SAKET A WAGHELA(8068) for the Respondent(s) No. 1
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 06/05/2025

                                                            ORAL ORDER

1. Being aggrieved by the order passed below exhibit 8 in

Regular Civil Suit No.485 of 2021, whereby the 9 th Additional

Civil Judge Vadodara has rejected the application filed under

order VII Rule 11 of the Code of Civil Procedure, 1908,(for

short "the Code") the original defendant nos.1 and 2 have filed

a delay condonation application to condone the delay of 301

days in preferring the Revision Application

2. For the sake of brevity and convenience, the parties are

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referred to as their original position in the suit proceedings.

3. The short facts involved in the present civil application are as

under:

3.1. The Original plaintiff filed Regular Civil Suit No.485 of

2021 challenging the sale deed that has been executed on

05.05.2005 and had sought possession of the suit property

and for declaration that the plaintiff is the owner of the suit

property. The defendant nos.1 and 2 filed application under the

provisions of Order VII Rule 11(d) of the Code on the ground

that the suit is barred by law and after taking into

consideration the plaint and the documents annexed with the

plaint, and after hearing the parties, the Trial Court rejected the

said application on 22.12.2022 and aggrieved by the said

order. Defendant nos.1 and 2 filed an application to condone

the delay of 301 days in preferring the revision application to

challenge the order passed below Exhibit 8 in Regular Civil

Suit No.485 of 2021.

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Submission of the learned advocate for the

petitioner/defendant:

4. Learned advocate for the defendant had submitted that there is

a delay of 301 days in preferring the application, on the ground

that after the order was passed on 22.12.2022, the defendants

had applied for certified copy on 16.01.2023 and were advised

to file revision application challenging the order dated

22.12.2022, but due to the bonafide mistake of the advocate

appearing before the Trial Court, certified copy of application

exhibit-8 along with order was put in the case paper of the

Civil Suit and the advocate had forgotten to handover to the

applicants and when the applicants were called by the

advocate in other proceeding and on inquiry about the status of

the civil suit, and it is only at that time, the applicants came to

know that the applicants had filed an application under Order

VII Rule 11 of the Code and the said application has been

rejected and the certified copy was also received on

23.01.2023, but as the same was placed in the file in the Civil

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Suit, there was a bonafide mistake and therefore there is a

delay of 301 days.

5. It has also been argued that that there is a bonafide mistake of

the advocate and there were circumstances, which were

beyond the control of the applicant and therefore there was a

delay of 301 days. Learned advocate for the applicant has also

filed additional affidavit wherein at paragraph no.5, it has

been argued that the certified copy was received by the

advocate, but due to the bonafide mistake on the part of the

advocate, the certified copy was not handed over to the

applicant and therefore there was a delay in filing the revision

application and therefore the delay is required to be condoned.

Learned advocate for the applicant has relied on the judgement

in case Inder Singh Vs. State of Madhya Pradesh reported in

2025 (0) AIJEL-SC 74939 and argued that even while

deciding an application to condone the delay, the merits of the

matter will have to be examined and in the present case, the

challenge is with respect to sale deed that has been executed in

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the year 1960 and therefore the suit is hopelessly time barred

and has also argued that the provisions of Order VII Rule 11 of

the Code can be exercised at any stage and even without an

application, the Court can consider the application and

therefore the delay of 301 days is required to be condoned and

a liberal view has to be taken by the Court while deciding the

application.

Submissions of learned advocate for the plaintiff:

6. Per contra, learned advocate for the plaintiff has mainly argued

that no sufficient reasons have been assigned by the applicant

to condone the delay of 301 days. It has been argued that only

contention that has been raised by the applicant for

condonation of delay is that there was negligence on the part

of the advocate and there was a mistake of the advocate and

therefore, the civil revision application could not be filed

within the period of limitation. It has also been argued that in

the said application to condone the delay the entire blame is

placed on the advocate engaged by the applicant before the

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Trial Court and other than the same, there is no whisper and/or

any sufficient cause mention to the delay of 301 days. It has

also been argued that the applicant has tried to shift the

responsibility on the Trial Court's Advocate and therefore

learned advocate for the plaintiff has relied on the judgment in

case of Rajneesh Kumar and Another Vs. Ved Prakash

reported in 2024 SCC OnLine SC 3380, in case of H.

Guruswamy and Others Vs. A.Krishnaiah Since Deceased

by Lrs. reported in 2025 SCC OnLine SC 54, in Special

Civil Application No.223 of 2025 in case of Gram

Panchayat Kadhi Vs. Heirs of Rambhai Khimabhai

Harijan & Ors. by order dated 07.01.2025, in Special Civil

Application No.207 of 2025 in case of Ravindra Murlidhar

Bhambhre Vs. Lhs. Of Decd. Aataji Jenaji Thakor & Ors.

by an order dated 05.02.2025 and in case of State of U.P. and

Anr. V. Mohan Lal reported in AIR 2024 Supreme Court

2404 and has argued that the applicant has been negligent and

having not acted diligently and remained inactive the delay

can not be condoned and in view of the said fact the

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application be rejected.

7. Having heard learned advocates for the parties, the fact

remains that the application that has been filed and the cause

for not filing the application within the prescribed period of

limitation is on the ground that, there is a mistake on the part

of the advocate who was handling the matter before the Trial

Court. The entire blame has been shifted on the advocate who

was appearing for the defendant before the Trial Court, no

justifiable reasons have been assigned in the application to

condone the delay and the additional affidavit filed by the

defendant to justify the sufficient cause to condone the delay.

It is not the case of the defendant that the defendant was not

aware that the defendant had filed an application under the

provisions of Order VII Rule 11 of the Code, as the said

application would have been signed by the defendant himself.

The fact also remains that the defendant had applied for

certified copy and thereafter, the defendant had not filed the

Revision Application within the prescribed period of

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limitation. In the present case the defendant has been negligent

and remained silent for a very long time after passing of the

order below exhibit 8. While considering an application to

condone the delay, it is not the length of the delay, but the

Court will have to look at the sufficient cause that needs to be

explained by the defendant to condone the delay. Moreover,

the sufficient cause in Section 5 of the Limitation Act can only

be given a liberal construction when no negligence, or inaction

or want of bonafide is imputable to the litigants. While

considering the sufficient cause the Court will have to take

into consideration the gross delay on the part of the applicant,

the conduct/ behaviour and attitude of the applicant relating to

its inaction or negligence are relevant factors which will have

to be taken into consideration and if the explanation offered is

concocted on the ground urged in the application, the Court

should be vigilant in not exposing the other side unnecessarily

to face such a litigation, and when in the present case, the

defendant is found to be negligent and the defendant has not

acted diligently and has remained inactive, therefore, it cannot

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be a justified ground to condone the delay.

8. Moreover, in the present case, the explanation given for

seeking condonation of huge delay of 301 days cannot be

accepted, when it is not disputed that the defendant appeared

before the Trial Court and was heard before passing the

impugned order below exhibit 8, so it was within their

knowledge, that an order below exhibit 8 has been passed. The

judgment that has been relied on by learned advocate for the

defendant Inder Singh Vs. State of Madhya Pradesh (Supra),

wherein the applicant relies on para nos.13, 14 and 15 which

reads as under:

"13. In the present case, the contentions of the appellant, on first blush appears to be attractive, inasmuch as the State cannot be given any undue indulgence as compared to an ordinary litigant, especially in matters of limitation. There is no doubt that all parties, whether or not State under Article 12 (3) of the Constitution, are required to act with due diligence and promptitude.

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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.

[3] 12. Definition.--In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.'

15. In the present case, the filing of the Review Petition before the First Appellate Court was with a delay of two years and four months and the Second Appeal before the High Court was delayed by about a year from the date of the dismissal of the Review Petition i.e., 30.09.2019. Pausing for a moment, it is necessary to indicate that in the present case, the dispute over title of a land is not between private parties, but rather between

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the private party and the State. Moreover, when the land in question was taken possession of by the State and allotted for public purpose to the Youth Welfare Department and the Collectorate and has continued in the possession of the State, the claim of the State that it is government land cannot be summarily discarded. We find, upon a perusal of the record, that the appellant had, in fact, filed an execution case for taking over possession of the land, which would demonstrate clearly the admitted position that he was not in possession thereof. Thus, the matter would, in our considered view, require adjudication on its own merits due to various reasons, inter alia, the fact that a new district has been formed after the initial claim of the appellant of being allotted the land in the years 1975-1976/1977-1978. Therefore, the delay of 1537 days reckoned from 01.10.2015 i.e. when the First Appellate Court decreed the suit, includes two years and four months delay in filing a Review Petition (which was itself dismissed on the ground of delay by the First Appellate Court) and of about a year thereafter for filing the Second Appeal before the High Court, in the

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peculiar facts and circumstances of the case, which, at the cost of repetition relate to land claimed by the State as government land and in its possession, persuade us to not interfere with the Impugned Order. Relevantly, initially the suit was dismissed by the Trial Court, which decision was reversed by the First Appellate Court."

9. The said judgment will be of no assistance to the defendant as

in the above judgment the Hon'ble Apex Court has held at

para no.14 that delay cannot be condoned without sufficient

cause and in the present case, no adequate explanation has

been stated by the defendant to condone the delay of 301 days.

10. Learned advocate for the respondent has relied on the

judgment Rajneesh Kumar and Another Vs. Ved Prakash

(Supra) wherein at para no.10, it has been 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

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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."

-The said judgement will apply to the facts of the case as in the

present case also, the defendant has tried to throw the entire

blame on the advocate who has been appearing for the

defendant in the Trial Court and as rightly held by the Hon'ble

Apex Court that the litigant owes a duty to be vigilant of his

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own rights and is expected to be equally vigilant about the

judicial proceedings pending in the Court initiated at his

instance and therefore, the defendant cannot be permitted to

throw the entire blame on the head of the advocate. To support

his argument.

11. Learned advocate for the plaintiff has relied on H.

Guruswamy and Others Vs. A.Krishnaiah Since Deceased

by Lrs. (Supra) para 16 as under:

"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

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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 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."

-In the said Judgment the Hon'ble Apex Court has held that

while considering the plea of condonation of delay, the Court

must not start with the merits of the main matter and the Court

will have to first ascertain the bonafides of the explanation

offered by the party seeking condonation and in the present

case, there are no sufficient causes assigned by the applicant to

condone the delay of 301 days.

12. Learned advocate for the respondent has also relied State of

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U.P. and Anr. V. Mohan Lal, paragraph 2 reads as under:

"2. A perusal of the application filed by the petitioner-State seeking condonation of huge delay of 1,633 days in filing the petition shows that to challenge the impugned order dated

13.11.2009 passed by the High Court the file was put up before the Competent Authority, Bareilly, for the first time on 13.04.2011. On this file the Competent Authority directed to seek legal opinion from the District Government Counsel (Civil). After receiving the legal opinion from DGC (Civil), permission was sought from the State Government which was granted and received by the petitioner on 16.09.2011.

Thereafter, to explain the delay in filing the petition, the only plea taken is that the matter was entrusted to the counsel.

However, later it was found that initially the appeal was not filed.

It is further evident from the application that the case was not properly followed up at any stage. The explanation given for seeking condonation of huge

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delay of 1,633 days cannot be accepted, when it is not disputed that the petitioner-State appeared before the High Court and was heard before passing of the impugned order, so it was within their knowledge."

-In the said judgment the Hon'ble Apex Court has held that as

no explanation has been given for seeking condonation of the

delay and the only explanation is with respect to the fact that

the matter was entrusted to the Council, the said judgement

will be of assistance to the opponent as in the case also, the

Hon'ble Apex Court has held that as no proper explanation has

been given for the delay, the delay cannot be condoned.

13. Learned advocate for the applicant has relied on the judgement passed in Special Civil Application No.207 of 2025 wherein at para nos.11 it is held as under:

"11. Thus, in view of the aforesaid authorities pronouncements by honourable Supreme Court of India on the issue at hand, it is now well- settled that if the Court finds the applicant is negligent or there is

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inaction on the part of the applicant, or want of due diligence, thereby constituting a long delay in filing any such appropriate application, the Court should not condone such negligent acts on the part of the applicant even by not imposing any conditions including costs."

14. And in Special Civil Application No.223 of 2025 at para nos.

7.1 and 7.2 as under:

"7.1. At this stage, it is apposite to refer to and rely upon a recent decision of the Hon'ble Supreme Court of India in the case of K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors. Reported in 2024 (4) Scale 759 wherein after re-visiting 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

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(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 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, justiceoriented, 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

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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.

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

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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."

emphasized supplied.

7.2. It is also profitable to rely upon the decision of Hon'ble Supeme 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

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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.

Emphasized supplied."

-Wherein the Court has held that if the Court finds the

defendant to be negligent or there is inaction on the part of the

defendant or want of due diligence, thereby constituting a long

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delay in filing of appropriate application, the Court should not

condone such negligent act on the part of the applicant.

15. In view of the said fact, this Court find defendant to be

negligent and there is inaction on part of the defendant thereby

constituting a long delay in filing present Civil Application