Gujarat High Court
Jamniben Wd/O Khansibhai Chhipabhai ... vs Sitaben D/O Chhipabhai Mandiabhai on 26 November, 2025
NEUTRAL CITATION
C/SA/108/2006 ORDER DATED: 26/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2024
In R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2 of 2024
In R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 3 of 2024
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2 of 2024
In R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 4 of 2024
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2024
In R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 5 of 2024
In R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 6 of 2024
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 5 of 2024
In R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 7 of 2024
In R/SECOND APPEAL NO. 108 of 2006
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 8 of 2024
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 7 of 2024
In R/SECOND APPEAL NO. 108 of 2006
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JAMNIBEN WD/O KHANSIBHAI CHHIPABHAI CHADHARY & ORS.
Versus
SITABEN D/O CHHIPABHAI MANDIABHAI
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Appearance:
MR R E VARIAVA(971) for the Appellant(s) No. 1,2,3,4,5,6,7
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/11/2025
ORAL ORDER
1. Since certain original appellants have expired, their respective
heirs have instituted the present applications seeking condonation of
delay occasioned in moving applications for bringing the legal
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representatives of the deceased appellants on record. Inasmuch as all
these applications arise from the self-same lis and, with the consent
of the learned advocates appearing for the parties, they are taken up
for analogous adjudication and disposed of by this common order.
2. Civil Application No. 3 of 2024 has been preferred by the heirs
of deceased appellant Bijiniben Chhipabhai Chaudhary, who passed
away on 29.04.2023. Consequent upon her demise, a delay of 357
days has ensued in presenting the application for substitution of legal
representatives. Condonation of the said delay has been earnestly
prayed for.
3. Civil Application No. 4 of 2024 has been instituted by the legal
heirs of deceased appellant Jamniben, widow of Khansibhai
Chhipabhai Chaudhary, who expired on 07.08.2023. A delay of 257
days has occurred in preferring the substantive application; hence
condonation thereof is sought.
4. Civil Application No. 6 of 2024 has been filed by the heirs of
deceased appellant Devjibhai Khansibhai Chaudhary, who passed
away on 09.03.2016. Owing to the substantial lapse of time, a delay
of 2248 days has been occasioned in filing the application for
bringing his legal representatives on record. A prayer is made for
condonation of the said protracted delay.
5. Civil Application No. 8 of 2024 has been moved by the heirs of
deceased appellant Kikiben Sevabhai Chaudhary, who expired on
30.07.2013, thereby resulting in a delay of 3201 days in preferring
the application for substitution. Condonation of this inordinate delay
is accordingly sought.
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6. I have heard the learned advocates appearing for the respective
parties at considerable length and have perused the relevant material
placed on record with the circumspection it warrants.
7. Learned advocate for the applicants submits that the applicants
belong to the Scheduled Castes and Scheduled Tribes and are
individuals of limited literacy, wholly unacquainted with the
procedural niceties governing substitution of legal representatives. It
is, therefore, urged that the delay occasioned in preferring the
present applications is neither deliberate nor contumacious but
attributable to their socio-economic constraints and lack of legal
awareness. Reliance is placed upon para 4 of the applications, which,
in pari materia, appears identically worded in all four applications,
to contend that the applicants have sufficiently and candidly set forth
the cause for delay. Hence, the learned advocate prays that all
applications for condonation of delay be graciously allowed.
8. Per contra, learned advocate appearing for the opposing side
has vehemently resisted the plea for condonation, contending that
the delay remains wholly unexplained and that no sufficient cause
within the meaning of the settled jurisprudence has been
demonstrated. It is, therefore, urged that the applications be
dismissed. It is further contended that the entire appeal stands
vitiated and ought to be declared abated, the decree being
inseparable in nature.
9. At the very outset, it would be apposite to advert to para 4 of
the applications, which, as noticed hereinabove, is couched in
identical phraseology across all the applications, and reads thus:-
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"4. That in preferring the Civil Application for bringing legal
heirs on record, some delay has occasioned due to the fact,
that after the matter was listed for final hearing, when the
advocate for the applicants informed the applicants about the
status of the second appeal, it was informed to the Advocate
that some of the appellants of second appeal have expired.
The applicants were unaware of the fact that they had to
inform the Advocate regarding the passing away of some of
the appellants who are illiterate belong to scheduled tribes
and are agriculturists. The delay which has occasioned is out
of bonafide mistake and unintentional. Hence it may kindly
be condoned in the interest of justice and the civil
application for bringing legal heirs be allowed, in the facts
mentioned herein above."
10. In the case of Esha Bhattacharjee v. Managing Committee of
Raghunathpur Nafar Academy & Others, (2013) 12 SCC 649, the
Hon'ble Supreme Court, while enunciating the governing principles
pertaining to condonation of delay, has, in Para 22, held as under:-
"22. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They are:-
22.1. An application for condonation of delay should be
drafted with careful concern and not in a half hazard manner
harbouring the notion that the courts are required to condone
delay on the bedrock of the principle that adjudication of a
lis on merits is seminal to justice dispensation system.
22.2. An application for condonation of delay should not be
dealt with in a routine manner on the base of individual
philosophy which is basically subjective.
22.3. Though no precise formula can be laid down regard
being had to the concept of judicial discretion, yet a
conscious effort for achieving consistency and collegiality of
the adjudicatory system should be made as that is the
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ultimate institutional motto.
22.4. The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be
exhibited in a non-challant manner requires to be curbed, of
course, within legal parameters."
11. In the recent decision of Shivamma (Dead) by LRs v.
Karnataka Housing Board & Others, 2025 SCC OnLine SC 1969,
the Hon'ble Supreme Court, while adverting to the doctrinal
contours governing condonation of delay, has, in Paras 259, 260,
261, and 263, enunciated the following principles:--
"259. We are of the view that the question of limitation is
not merely a technical consideration. The rules of limitation
are based on the principles of sound public policy and
principles of equity. We should not keep the 'Sword of
Damocles' hanging over the head of the respondent for
indefinite period of time to be determined at the whims and
fancies of the appellants.
260. From the above exposition of law, it is abundantly
clear that the High Court has erroneously condoned a
massive delay of 3966 days on account of certain lapses at
the administrative levels and of there being no follow-ups in
the proceedings, along with finding certain merits in the case
of the respondent no. 1 against the maintainability of the suit
of the appellant and that of the relief molded by the First
Appellate Court. We have no hesitation in stating that such
grounds are nowhere near to being "sufficient cause" as per
Section 5 of the 1963 Act. The High Court lost sight of the
fact that the precedents and authorities it relied upon by it
had delays of two-digits, or even that of single-digit, more
particularly the delay in those cases was supported by
sufficient cause. The present case, however, stands on a very
different footing, owing to such an enormous delay. Hence,
we are not inclined to accept the condonation of the delay by
the High Court.
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261. Thus, for the reasons aforesaid, the impugned order of
the High Court deserves to be set aside. Before we proceed
to close this judgment, we deem it appropriate to make it
abundantly clear that administrative lethargy and laxity can
never stand as a sufficient ground for condonation of delay,
and we want to convey an emphatic message to all the High
Courts that delays shall not be condoned on frivolous and
superficial grounds, until a proper case of sufficient cause is
made out, wherein the State-machinery is able to establish
that it acted with bona fides and remained vigilant all
throughout. Procedure is a handmaid to justice, as is
famously said. But courts, and more particularly the
constitutional courts, ought not to obviate the procedure for a
litigating State agency, who also equally suffer the bars of
limitation from pursuing litigations due to its own
lackadaisical attitude.
263. Limitation periods are prescribed to maintain a
sweeping scope for the lis to attain for finality. More than
the importance of judicial time, what worries us is the plight
of a litigant with limited means, who is to contest against an
enormous State, and its elaborate and never-exhausting
paraphernalia. Such litigations deserve to be disposed of at
the very threshold, because, say if a party litigating against
the State, for whatever reason, is unable to contest the
condonation of delay in appeal, unlike the present case, it
reopens the lis for another round of litigation, and leaves
such litigant listless yet again. As courts of conscience, it is
our obligation that we assure that a litigant is not sent from
pillar to post to seek justice."
12. Having regard to the principles delineated by the Hon'ble
Apex Court, it stands indubitably pellucid that the law of limitation
prescribes a definitive lifespan for availing a legal remedy; time,
once lost, is irretrievable and, nay, would never revisit. Though
Section 5 of the Limitation Act, 1963 clothes the Court with the
discretion to condone delay, such indulgence is not to be exercised
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ex aequo et bono or in vacuo. The party seeking condonation must
demonstrate "sufficient cause" for every day's delay, and in absence
whereof, the very foundation for seeking such indulgence crumbles.
12.1. It is equally axiomatic that while the Court ought not to
assume a pedantic or hyper-technical posture in considering
applications for condonation, it must simultaneously remain
circumspect to ensure that a litigant, under the guise of liberal
interpretation, is not permitted to sub-serve or circumvent the trite
posit of law embodied in the statute of limitation. The doctrine
cannot be diluted to enable a party to write its own law of limitation.
13. In Shivamma (Dead), the Hon'ble Supreme Court has, in
unequivocal terms, observed as under:--
"258. The length of the delay is 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, it appears that they want to fix
their own period of limitation for 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, it cannot be heard to plead 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."
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14. In the present case, the applicants, who are the legal heirs of
the deceased appellants, were indubitably aware that a Second
Appeal had been instituted by the original appellants. Yet, they
chose to remain supine and indolent, taking no steps whatsoever to
bring themselves on record for a considerably protracted period. The
explanation tendered--namely, that they are illiterate, belong to
Scheduled Castes/Scheduled Tribes, or are agriculturists does not, by
any stretch of legal imagination, constitute "sufficient cause" so as to
justify condonation of such inordinate and unconscionable delay.
Mere socio-economic limitations, unaccompanied by any cogent or
bona fide explanation, pale into insignificance when weighed against
the statutory command embodied in the law of limitation.
15. In view of the foregoing ratiocination, this Court finds no
warrant, pro tanto or otherwise, to exercise its discretionary
jurisdiction under Section 5 of the Limitation Act. Ergo, the
applications seeking condonation of delay stand dismissed.
16. It is equally apposite to note that the decree impugned in the
suit is inseparable, both singularly and in toto; ergo, if the appeal
abates qua even one of the appellants, the inevitable consequence is
that the appeal must abate in its entirety, lest contradictory or
mutually irreconcilable decrees emerge. In Budh Ram v. Bansi,
2010 (0) AIJEL-SC 48686, the Hon'ble Supreme Court, adverting
to its earlier pronouncement in Ramagya Prasad Gupta & Ors. v.
Brahmadeo Prasad Gupta & Anr., AIR 1972 SC 1181,
unequivocally held that where a joint and indivisible decree exists
between co-owners, and the appeal, qua some of the appellants,
abates owing to failure to bring the legal representatives on record,
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the entire appeal must necessarily stand abated.
17. Following the aforesaid dictum, this Court deems it
appropriate to hold that the entire appeal stands abated in limine.
18. Interim relief, if any, granted earlier, stands vacated, and the
proceedings, if transmitted, shall be remitted to the Court below
forthwith.
(J. C. DOSHI,J)
MANISH MISHRA
