Gujarat High Court

Shankarbhai Motibhai Patel vs Parmar Sajjansinh Sartansinh on 9 October, 2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    R/SPECIAL CIVIL APPLICATION NO. 8112 of 2016


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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                                 Approved for Reporting                      Yes           No
                                                                                            ✓
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                                            SHANKARBHAI MOTIBHAI PATEL & ORS.
                                                               Versus
                                        PARMAR SAJJANSINH SARTANSINH & ORS.
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                     Appearance:
                     DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
                     for the Petitioner(s) No. 1
                     MR Y J PATEL(3985) for the Petitioner(s) No. 1.1,1.2
                     MS GAYATRIBA B JADEJA(5152) for the Respondent(s) No. 1,3,4,5
                     NOTICE UNSERVED for the Respondent(s) No. 2
                     ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 09/10/2025

                                                        ORAL JUDGMENT

1. Heard learned Advocate Mr. Y. J. Patel for the petitioners.

Learned Advocate for respondent Nos. 1, 3 to 5 is absent.

Notice remained unserved to respondent No. 2.

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

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Constitution of India, seeking the following the reliefs:

"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside impugned order dated; 09.11.2012 passed by Learned Principal Senior Civil Judge in Civil Misc. Application no; 06 of 2012 (at ANNEXURE-C (Colly) hereto), and further be pleased to allowed the Civil Misc. Application no; 06 of 2012 and order to be restore Regular Civil Suit no;

146 of 2008;

(B) to During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased allowed the Civil Misc. Application no; 06 of 2012 and the Regular Civil Suit no; 146 of 2008 filed by the petitioner (Original Plaintiff) order to restore in file;

(C) Pass any such other and/or further orders that may be thought just and proper, in facts the and circumstances of the present case."

3. At the outset, learned Advocate Mr. Patel would state that

there is a delay of around two years in filing the restoration

application by the petitioners, which was not condoned by the

Trial Court, against which the present writ application filed.

3.1. Learned Advocate Mr. Patel would further state that the

petitioners herein are the original plaintiffs of Special Civil Suit

No. 13 of 2005, which was later on converted into Regular

Civil Suit No. 146 of 2008 and got dismissed for non-

prosecution by the Trial Court vide its order dated 10th

February 2010. It is submitted that such fact was not within

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knowledge of the petitioners herein, inasmuch as the petitioner

is a senior citizen, aged about 68 years old at the time of filing

impugned delay application. It is further submitted that the

learned Advocate appearing for the petitioner before the Trial

Court not inform them about such order, which resulted into

delay in filing the restoration application.

3.2. Learned Advocate Mr. Patel would further submit that there

was neither any gross negligence, nor inordinate delay nor any

ill-intention on the part of the petitioner having not filed the

restoration application within the stipulated time. It is

submitted that sufficient cause made out in the delay

application, which ought to have been considered by the Trial

Court in a more liberal manner, rather than taking hyper-

technical approach, thereby, rejected impugned delay

application.

3.3. Learned Advocate Mr. Patel would further submit and draw

the attention of this court that initially the suit was filed as a

special civil suit, but later on converted into regular civil suit,

which was not brought to the notice of the petitioner and

considering his old age, he was unable to attend the suit

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proceedings rigorously as was expected from plaintiff.

3.4. So, making the above submissions, learned Advocate Mr. Patel

requests this court to condone the delay in filing the restoration

application by putting any terms, including costs, upon the

petitioner. Thus, requested this Court to allow the present writ

application.

4. No other and further submissions are made.

5. As observed hereinabove, none appeared for the respondents.

This court would like to appreciate the submissions so made by

learned Advocate Mr. Patel for the petitioner.

6. Having heard learned Advocate Mr. Patel at length and after

going through the impugned order passed by the Trial Court,

whereby it rejected the delay application, prima facie, there is

neither any perversity nor any jurisdictional error committed

by the Trial Court while passing the impugned order, inasmuch

as, there is no sufficient cause as such made out by the

petitioner in his impugned delay application.

7. The suit was initially filed as Special Civil Suit No. 13 of 2005,

which came to be converted into Regular Civil Suit No. 146 of

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2008. It has been so observed by the Trial Court in its

impugned order that the injunction application so filed by the

petitioner in aforesaid suit came to be decided by the Trial

Court on 5th January 2009 and at that time, learned Advocate

of petitioner was heard by the Trial Court. So, it cannot be

gainsaid that the petitioner was not aware about conversion of

the suit.

8. The suit came to be dismissed for non-prosecution on 10th

February 2010, whereas, the impugned delay application came

to be filed on 9th March 2012, may be along with the

restoration application filed under Order 9, Rule 9 of the CPC.

There is a delay of around two years in filing such restoration

application.

9. The bare reading of the impugned delay application would

suggest that there is no sufficient cause made out by the

petitioner, inasmuch as, except the narration of facts and

events happened till the dismissal of his suit, and his purported

ignorance about the conversion of the suit from special suit to

regular suit, there is no further explanation as to any sufficient

cause made out in the application i.e. which cause prevented

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him not to file restoration application within time. The

petitioner only stated that he is a senior citizen, aged about 66

years old and cannot run as fast as others. It has been so stated

in the impugned delay application that due to inadvertence, he

could not remain present when the suit taken up for hearing.

As such, this court does not find any merit in the delay

application inasmuch as, no material particulars submitted by

petitioner in support of his impugned delay application,

especially it was inordinate one.

9.1. It is apt to rely first relied upon the decision of Honourable

Supreme Court of India in a case of Rajneesh Kumar & Anr V/S

Ved Prakash reported in 2024 (14) SCALE 406 , wherein held as

under:

"[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

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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 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)

9.2. 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 revisiting 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

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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 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.

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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

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side unnecessarily to face such a litigation."

(emphasis supplied)

9.3. 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 V/S

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,

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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;

(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)

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

Supreme 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:-

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"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)

9.5. Even, recently also, the Hon'ble Supreme Court in the case of

Shivamma (DEAD) By Lrs Vs. Karnataka Housing Board &

Ors. reported In 2025 INSC 1104, in clear terms held that

where there is delay/laches on the part of the applicant in not

prosecuting the legal remedy, in the absence of any sufficient

cause made out by the applicant, the Court should not condone

the delay while exercising its power under Section 5 of the

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Limitation Act, 1963. In the case of Shivamma (Supra), the

Hon'ble Supreme Court has held thus:-

"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."

(emphasis supplied)

10. Keeping in mind the ratio of the aforesaid decisions, if so apply

to the facts of the present case, I am of the view that there is no

error much less any gross error of law and/or any jurisdictional

error committed by the Trial Court while not condoning the

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delay in filing restoration application by petitioner. According

to my view also, the petitioner was remain negligent in

prosecuting his legal remedy, then not entitled to get the delay

condone.