Gujarat High Court

M/S Tirupati Fin-Lease Ltd vs Kiran Agrawal on 9 October, 2025

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                             C/SCA/12061/2025                                   ORDER DATED: 09/10/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 12061 of 2025

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                                                   M/S TIRUPATI FIN-LEASE LTD.
                                                              Versus
                                                         KIRAN AGRAWAL
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                       Appearance:
                       MR DIPAN DESAI(2481) for the Petitioner(s) No. 1
                       MR AS ASTHAVADI(3698) for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 09/10/2025

                                                              ORAL ORDER

1. Heard learned advocate Mr. Dipan Desai for petitioner

and learned advocate Mr. A. S. Asthavadi for respondent.

2. With the consent of the learned advocate appearing for

the respective parties, the matter is taken up for hearing.

3. Rule returnable forthwith. Learned advocate Mr. A. S.

Asthavadi waives service of notice of Rule on behalf of the of

the respondent.

4. Present application is filed under Article 227 of the

Constitution of India for seeking following reliefs:-

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(A). The Hon'ble Court may be pleased to quash and set aside the impugned order dated 23.07.2025 passed by the Appellate Bench of Small Causes Court, Ahmedabad (2 nd Bench) below Exh.01 in Civil Miscellaneous Application (Delay Condonation Application) No. 23 of 2025 at annexure - A. (B) Pending final hearing and disposal of this petition, the Hon'ble Court be pleased to call for records and proceedings of the Civil Miscellaneous Application No.23 of 2025 from the learned Small Causes Court, Ahmedabad.

(c) The Hon'ble Court be pleased to grant such other and further relief in the interest of justice.

SUBMISSION OF THE PETITIONER - DEFENDANTS:-

5. At the outset, learned Advocate Mr. Desai would submit that there was a delay of hardly 55 days in filing the new Trial Application under Section 38 of the Presidency Small Cause Courts Act, 1882, which was not condoned by the Appellate Bench of the Small Cause Court, Ahmedabad.

5.1. Learned Advocate Mr. Desai would submit that while

adjudicating the delay application, hyper-technical approach is

not required to be adopted; rather time and again as held by

the Hon'ble Apex Court a liberal approach requires to be

adopted.

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5.2. Learned Advocate Mr. Desai would further submit that as

such, there is no gross negligence on the part of the petitioner

not to file new trial application within the stipulated time. The

reasons which are stated in the application and so germane

from the record, delay occurred in filing such application,

requires to have been condoned by the Appellate Court.

5.3. Lastly, learned Advocate Mr. Desai would further submit

that the petitioner herein was the original plaintiff of summary

suit which was dismissed by the Small Cause Court,

Ahmedabad, thereby, his right to prefer appeal/new trial

application have been jettisoned by technicality of delay.

5.4. Learned Counsel Mr. Desai would rely upon the judgment

Hon'ble Apex Court in the case of Mool Chandra Vs. Union of

India and Another 2025 (1) SCC page 625.

SUBMISSION OF THE RESPONDENTS:-

6. Per contra, learned advocate Mr. Asthavadi appearing for

the respondent would submit that there is negligence on the

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part of petitioner herein in filing a New Trial Application

before the Appellate Court and as such, there is no error

committed by the Appellate Court while rejecting the

impugned application.

6.1. It is submitted that sufficient reasons are assigned by

Appellate Court while rejecting impugned Delay Application

and this Court should not exercise its power under Article 227

of the Constitution of India.

6.2. Learned Counsel Mr. Asthavadi would submit that when

petitioner filed new trial application, it being company, and

Authority letter ought to have been filed which appears to

have not been filed by petitioner, thereby, no relief could have

been granted in favour of petitioner.

6.3. Learned Counsel Mr. Asthavadi would further submits

that even after applying for certified copy of judgment and

decree impugned in trial application, petitioner took long time

to get its delivery which ultimate resulted into delay of around

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55 days in filing new trial application. It is submitted that

when petitioner remained indoor for long time and not

bothered to collect certified copy of judgment and decree

passed by trial Court, such negligent act of petitioner may not

be condoned by this Court.

6.4. Lastly, learned Counsel Mr. Asthavadi would submit that

even if this Court wants to condoned the delay in filing new

trial application, petitioner may be directed to pay cost to

respondent because for no fault of respondent, he is required

to appear before this Court in the present writ application.

7. Having heard learned Counsels for respective parties,

prima facie, it appears that there is as such no gross

negligence, inordinate delay, no dilatory tactics and/or there is

no intentional delay on part of petitioner in filing new trial

application. When such would be the case, view taken by the

Appellate Court is hyper technical view while adjudicating

delay application which is just opposite to settled legal position

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of law laid down by Hon'ble Apex Court in its numerous

judgment.

8. The Appellate Court has erroneously observed in its

impugned order that delay is required to be explained for each

day and mere blaming the advocate cannot be considered for

condonation of delay.

8.1. At this Stage, it would be apt to refer and rely upon few

pertinent observations made by Hon'ble Apex Court in the case

of Mool Chandra (supra) wherein, it is observed and held thus;

"20. Be that as it may. On account of liberty having been granted to pursue his remedy in accordance with law, yet another OA No. 2066 of 2020 along with an application for condonation of delay came to be filed. The delay was not condoned by the Tribunal on the ground that it was filed more than one year after the impugned order came to be passed. No litigant stands to benefit in approaching the courts belatedly. It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of "sufficient cause", irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned.

22. This Court in Commr. v. Labour Commr. has taken a view that while deciding an application for condonation of delay the High

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Court ought not to have gone into the merits of the case. It has been further held: (SCC p. 526, para 5) "5. While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it. We ourselves have also examined the application filed under Section 5 of the Limitation Act before the High Court and, in our opinion, the delay of 178 days has been properly explained by the appellant. That being the position, we set aside the impugned order of the High Court. Consequently, the appeal filed before the High Court is requested to decide the appeal on merit in accordance with law after giving hearing to the parties and after passing a reasoned order."

23. If negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then we are of the considered view that both the Tribunal and the High Court were in error in not adopting a liberal approach or justice-oriented approach to condone the delay. This Court in Municipal Council, Ahmednagar v. Shah Hyder Beig has held: (SCC p. 51, para 6) "6. Incidentally this point of delay and laches was also raised before the High Court and on this score the High Court relying upon the decision in Abhyankar case observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhyankar case stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated: (SCC OnLine Bom para 22)

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'22. The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner, so as to infer that he has given up his claim or whether before the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay.'"

(emphasis supplied)

9. If the ratio of the aforesaid decision applies to the facts

of the present case, I am of the view that there is a serious

error of law committed by the Appellate Court while rejecting

impugned delay application.

10. At the same time, respondent requires to be compensated

by the petitioner as according to my view Appellate Court

could have exercise its discretion in favour of applicant by

condoning delay but at the same time could have compensated

respondent by directing petitioner to pay him costs, which I do

so.

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11. in view of aforesaid, present writ application requires to

be allowed. Accordingly, impugned order dated 23.07.2025

passed by the Appellate Bench of Small Causes Court

Ahmedabad City, Ahmedabad in Civil Miscellaneous

Application (Delay Condonation Application) No. 23 of 2025 is

hereby quashed and set aside.

12. Consequently, impugned delay application being Civil

Miscellaneous Application No. 23 of 2025 is hereby allowed.

Subject to petitioner to pay cost of Rs.7,500/- to respondent

within 15 days from the date of copy of this order. Once such

payment of costs being made by petitioner to respondent as

aforesaid, New Trial Application filed by the petitioner be

registered and decided by the Appellate Court in accordance

with law.