Gujarat High Court
Keshubhai Bhimabhai Baraiya vs Dudhiben Kathadbhai Pancholi on 7 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6450 of 2025
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KESHUBHAI BHIMABHAI BARAIYA & ANR.
Versus
DUDHIBEN KATHADBHAI PANCHOLI & ORS.
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Appearance:
MR TULSHI R SAVANI(3070) for the Petitioner(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/05/2025
ORAL ORDER
1. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :
"(A) Be pleased to allow present petition.
(B) Be pleased to quash set aside the order dated 07.02.2025
passed by the learned 4th Additional District Judge, Mahuva, in Misc.
Civil Appeal No. 5 of 2023 annexed at Annexure A, and the order
dated 24.08.2022 passed by the learned Principal Senior Civil Judge,
Mahuva, rejecting the application for condonation of delay being Misc.
Civil Application No. 6 of 2018 preferred in restoration application by
passing appropriate writ, order or direction.
(C) Be pleased to condone the delay of 3 years and 8 months
caused in filing restoration application and be pleased to direct the
learned Principal Senior Civil Judge, Mahuva to restore Regular Civil
Suit No. 115 of 2011 to its original file and proceed with the matter in
accordance with law.
(D) Pending admission, hearing and final disposal of this petition, this
Hon'ble Court may be pleased to stay the implementation and
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operation of the orders at Annexure -A and in the interest of justice.
(E) Such other and further relief or relieves as may be deemed just
and expedient in view of the facts and circumstances of the case may
kindly be granted."
2. The parties will be referred asfar as possible as per
their original position in the suit.
Short facts of the case
3.0 The petitioner No.1 herein happens to be son one of
legal heirs of original plaintiff No.2, whereas petitioner No.2
is original plaintiff No.1 and respondents herein are original
defendants of Regular Civil Suit No 115 of 2011.
3.1 The plaintiffs appears to be real brother and sister
having jointly filed aforesaid suit on 18.10.2011 challenging
registered sale-deed dated 20.06.1983 allegedly executed by
them in favour of father of defendants.
3.2 It appears that plaintiff No.2 died on 20.10.2011 but no
effective steps were taken to bring her legal heirs on record.
It is not out of place to mention that within two days of
institution of the suit, the plaintiff No.2 died. Nonetheless,
said suit came to be dismissed for default by the trial Court
on 05.07.2014.
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3.3 The petitioner No.1 herein claiming to be legal heirs of
plaintiff No.2 being one of the son had filed restoration
application on 03.04.2018 before the trial Court. As there
was delay of 3 years 11 months in filing such restoration
application, a delay application No. 6 of 2018 came to be
filed.
3.4 It is require to be observed that in delay application, it
has been so mentioned that there are other four legal heirs
of plaintiff No.2 but reason best known to petitioners,
neither they have been joined nor original plaintiff No.1 was
joined in delay - restoration application. The defendants
have filed their reply objecting delay application.
3.5 After hearing the parties, the trial Court having not
found any sufficient cause, rejected the delay application
vide its order dated 24.08.2022 and so also taken note of not
joining plaintiff No.1.
3.6 The petitioners herein appear to have challenged the
said order before the appellate Court by filing appeal under
Order 43 rule 1 of CPC being MCA No. 5 of 2023 which came
to be dismissed by the appellate Court vide its judgment and
order dated 07.02.2025 holding appeal not maintainable.
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3.7 Feeling aggrieved and dissatisfied, petitioners have
preferred the present writ application challenging the
aforesaid orders passed by the trial Court as well the
appellate Court.
Submission of the petitioners
4. Learned advocate Mr. Tulshi R. Savani for the
petitioners would submit that the trial Curt has erroneously
rejected the delay application despite sufficient cause made
out by the petitioners in delay application.
4.1 Learned advocate Mr. Savani would further submit that
the trial Court has taken hyper technical approach and
without appreciating the fact that the petitioners are poor
and illiterate, a liberal approach ought to have been taken
while adjudicating delay application.
4.2 Learned advocate Mr. Savani would further submit that
as such there was no mala-fide intention, negligence on the
part of the petitioners in filing delay application and as such,
petitioner No.1 happens to be son of plaintiff No.2 came to
know about the proceedings recently in the year 2018 then-
after immediately approached the trial Court by fling
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restoration application.
4.3 Learned advocate Mr. Savani would further submit that
defendant can be compensated in terms of money thereby
delay can be condoned by the trial Court and so, petitioners
may be given one chance to defend the suit on its merit.
4.4 To buttress his argument learned advocate Mr. Savani
for the petitioners would refer and rely upon the following
decisions :-
(i) Banaskantha District Panchayat Vs. Kanti
Construction Company passed in Special Civil Application No.
8714 of 2014 dated 30.09.2022 (relied Para-1 & 2)
(ii) Harishchandra Chandrahas Parikh and another Vs.
Makbul Mohmadali Vora and another passed in Civil Revision
Application No. 145 of 2016 dated 12.09.2022 (relied Para-3 ).
(iii) Sushilaben Arvindbhai Joshi Vs. Ataji Bhaji Thakore
Since Dead through his heirs passed in Special Civil
Application No. 3462 of 2020 dated 17.08.2023 (relied Para-6
& 7).
(iv) Rafiq Vs. Munshi Lal reported in 1981 (0) AIJEL-SC-
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22300 (relied Para-3).
(v) Jashbhai Bhailalbhai Patel and another Vs. Babubhai
Savjibhai Bajariya and others passed in Special Civil
Application No. 22702 of 2017 dated 22.04.2022. (relied Para-
6.2 to 6.10)
4.5 No other and further submissions made by the learned
advocate for the petitioner.
5. Heard learned advocate Mr. Tulsi R. Savani for the
petitioner at length.
The short questions falls for consideration
(i) Whether any error of law committed by the appellate
Court while holding appeal under Order 43 rule 1(c) of CPC is
not maintainable having filed against order of rejection of
delay application filed in restoration application by the trial
Court ?
(ii) Whether any gross error of law or jurisdiction error
committed by the trial Court while not condoning the delay
in filing restoration application ?
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6. The Appeal from Order 43 rule 1(c) would be
maintainable against rejection of an application filed under
rule 9 of Order IX of CPC but no appeal is provided under
Order 43 rule 1 CPC against rejection of delay application so
filed in such restoration application being filed order IX rule
9 of CPC.
6.1 The trial Court having not condoned delay in filing
application under Order IX rule 9 of CPC, no Appeal from
Order could have been filed before the appellate Court
which has been filed by the petitioners being Civil Misc.
Appeal No. 5 of 2023. It was not maintainable under law.
6.2 So, in view of express provisions of Order 43 rule 1 (c)
read with Section 104 of CPC, I am in complete agreement
with the view taken by the appellate Court whereby held
that such appeal is not maintainable.
6.3 Thus, answering to question No. (i), this Court would
not find any error of law committed by the appellate Court
while dismissing appeal as not maintainable.
7.0 So far as facts which are observed hereinabove are not
in dispute. The suit appears to have filed by the mother of
petitioner No.1 and petitioner No.2 - plaintiff No.1 happens
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to be brother of plaintiff No.2 jointly against respondents-
defendants. It appears that within two days of filing suit,
plaintiff No.2 - mother of petitioner No.1 died. No steps
taken to bring her legal heirs on record and as such suit got
abated qua plaintiff No.2. When a common interest involved
of plaintiff No.1 and 2 in the suit, as such it got abated as a
whole.
7.1 Be that as it may, suit was dismissed for default on
05.07.2014. It is surprising to note that impugned delay
application in restoration application came to be filed on
03.04.2018 after about 3 years and 11 months from the date
of dismissal of the suit, by one of legal heir of plaintiff No.2
i.e. petitioner No.1. It appears that petitioner No.2 was not
joined in delay application and so restoration application
though he was plaintiff No.1. Nonetheless, plaintiff No.1 was
joined as Appellant No. 2 in the aforesaid appeal as well as in
the present writ application. As such till date, no restoration
application came to be filed by original plaintiff No.1. So, qua
plaintiff No.1, suit still remains dismissed for default.
7.2 It appears from the record and after considering the
submissions of learned advocate Mr. Savani for the
petitioners that there was no application filed by all legal
heirs of original plaintiff No.2 to first bring them on record,
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sought setting aside abatement and so also setting aside
dismissal of suit, but straight away, restoration application
came to be filed by petitioner no.1 happens to be one of son
of plaintiff No.2. Such a recourse adopted by the petitioner
No.1 is neither permissible in law nor in consonance with the
provisions of CPC.
7.3 Learned advocate Mr. Savani for the petitioners was
not in a position to substantiate such recourse adopted by
petitioner No.1 and having not able to reply as to whether
such restoration application/ delay application would be
maintainable only at the instance of one of the legal heir of
original plaintiff No.2 who died within two days of filing of
the suit and so also without joining plaintiff No.1 in such
restoration application.
7.4 According to this Court, when plaintiff No.1 who
happens to be brother of plaintiff No.2 having not joined in
restoration/ delay application, qua him suit was remained
dismissed for default. As considering the fact that both the
plaintiffs are having common interest, thereby, challenged
registered sale-deed allegedly executed by them in favour of
father of defendants in the year 1983 challenging in the year
2011, could not have been entitled to get any relief by
petitioner No.1 in filing such restoration application with
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delay having not joined plaintiff no.1 in such application and
other legal heirs of deceased plaintiff No.2.
7.5 The aforesaid objection / fact submitted by defendants
having recorded such objection in Para-5 of the impugned
order passed by the trial Court which is also taken note of by
the trial Court while rejecting delay application while
recording its reasons in Para-6 of the order impugned passed
by the trial Court. So, only on this count alone, delay/
restoration application requires to be rejected and in fact so
rejected by trial Court thereby, no gross error of law or
jurisdictional error can be found in the impugned order
passed by the trial Court.
7.6 Be that as it may, this Court has also examined the
averments made in the delay application and so also
reasoned assigned by the trial Court so as to find out
whether any sufficient cause was made out by petitioner
No.1 in filing restoration application?.
7.7 It appears that there was gross an inordinate delay of
around 3 years and 11 months in filing restoration
application. Only explanation given by the petitioner No.1
that when he has filed an appeal before Collector (Revenue
proceedings), defendants have submitted the order of
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dismissal of suit, thereby, he came to know about dismissal
of suit. Nonetheless, petitioner No.1 has conveniently and
deliberately not disclosed the date of such knowledge which
is sine qua non to taste bona-fide of petitioner No.1 who
prays for equitable relief i.e. delay condonation. Even
plaintiff No.1 was alive could have timely filed restoration
application but there is no whisper about his date of
knowledge and or any inclination on his part to get suit
restored back on its file.
7.8 Having not given particulars of date of knowledge
rather given vague and evasive explanation which would
never considered to be a sufficient cause even if this Court
taken liberal approach in favour of petitioners while
examining delay application.
7.9 As such, petitioners have not properly explained delay
in filing restoration application and impugned delay
application is bereft of particulars and in absence of proper
and satisfactory explanation of delay, sufficient cause was
not made out in filing restoration application. It appears that
petitioners have remained negligent all throughout for
institution of the suit till its dismissal so mentioned in Para-6
of the impugned order in the trial Court and further
remained indolent, careless and negligent after dismissal of
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the suit for more about 3 years and 11 months.
8. It is apt to refer and rely upon the decision of
Honourable Supreme Court of India in a case of Rajneesh
Kumar & Anr Vs. 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:-
"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
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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)
8.1 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 subject 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 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
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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.
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)
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8.2 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 Vs. 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 so observed and
held as under :
"[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:
(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;
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(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)
8.3 Lastly, it is also profitable to rely upon the decision of
the 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 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)
9. At last, I would like to observe that this Court while
exercising its power under Article 227 of the Constitution of
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India having limited scope of interference in the order
passed by the Courts below which is succinctly discussed in
following two decisions of the Hon'ble Apex Court in the
case of (i) Sameer Suresh Gupta TR PA Holder vs. Rahul
Kumar Agarwal, reported in 2013 (9) SCC 374 (ii) Garment
Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181.
10. As such when there is no sufficient cause made out and
having found that petitioners were negligent in pursuing
their legal remedy in aforesaid binding decisions of the
Hon'ble Apex Court, none of the judgments cited by the
learned advocate for the petitioners passed by the learned
single judge of this Court would come to the rescue of
petitioners. Further, having not joined plaintiff No.1 in delay/
restoration application would also fatal to the case of
plaintiffs.
Conclusion.
11. So, in view of the aforesaid facts and circumstances of
the case and position of law stands as on date, I am of the
view that there is no gross error much less any jurisdictional
error committed by the trial Court as well as appellate Court
while rejecting the impugned delay application. No
interference of this Court requires while exercising its power
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under Article 227 of Constitution of India.
11.1 In view of the aforesaid facts and ratio of various
decisions of Hon'ble Supreme Court so referred herein-
above, I am of the view that present writ application lacks
merit requires to be rejected.
12. Thus, due to foregoing reasons, the orders impugned
passed by the trial Court as well as appellate Court whereby
rejected the impugned delay condonation application and or
appeal is just and proper, consequently the writ application
deserves to be dismissed and the same is hereby dismissed.
No order as to costs.
(MAULIK J.SHELAT,J)
SALIM/
