Gujarat High Court
Sharnya Infra Pvt. Ltd vs Nareshbhai Kantilal Shah Proprietor Of ... on 14 October, 2025
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12964 of 2025
==========================================================
SHARNYA INFRA PVT. LTD & ORS.
Versus
NARESHBHAI KANTILAL SHAH PROPRIETOR OF JAIN STEEL TRADERS
==========================================================
Appearance:
MR MB GOHIL(2702) for the Petitioner(s) No. 1,2,3
MR MONARCH K PANDYA(11437) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 14/10/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mr. Monarch K.
Pandya waives the service of notice of Rule on behalf of the
respondent. With the consent of the parties, the matter is taken
up for hearing.
2. Heard learned Advocate Mr. M. B. Gohil for the petitioners
and learned Advocate Mr. Monarch K. Pandya for the
respondent.
3. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
"[A] This application may be allowed.
[B] Be pleased to quash and set aside the order of the Ld. District & Sessions
court of Rajkot dated 28/04/2025 in Civil Miss. Application no. 149 of 2024 of
rejecting the delay condonation application this order has been marked and
produced here as Annx-C and thereby confirming the order dated 26/03/2024
passed by the Learned Court of Addl. Judge, Small civil suit no. 127/2022 this
order has been marked and produced here as Annx-A;
[C] Be pleased to condone the delay in preferring the First Appeal before the
Ld. District Court and remand the appeal for hearing on merits;
[D] Any other and/or further relief/s that this Hon'ble Court may deem fit
looking to the facts and circumstances of the case may be awarded to the
present applicant."
4. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
4.1. Learned Advocate Mr. Gohil would submit that the Appellate
Court has taken very hyper-technical view while not condoning
the delay of around 8 months and 12 days in filing the First
Appeal. It is submitted that there was no mala fide an
intentional delay on the part of the petitioners having preferred
the appeal after the period of limitation so prescribed under the
Act. But, it remains an undisputed fact that before filing the
regular appeal before the Appellate Court concerned,
inadvertently on the part of the petitioners, they have preferred
First Appeal before this Court, which was filed within the
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
period of limitation. But, having noticed the fact that it was
inadvertently filed before this Court, registration of such appeal
was refused with a view to file appropriate Regular Civil
Appeal before the competent Appellate Court.
4.2. Learned Advocate Mr. Gohil would submit that due to such
reason as aforesaid, there was a delay in filing the appeal;
otherwise, there is no gross negligence on the part of the
petitioners having not filed the appeal within the stipulated
time. It is further submitted that at no point in time, the
petitioners have given up their right to file appeal, but due to
inadvertence and bonafide pursuing wrong remedy resulted
into such delay.
4.3. Lastly, learned Advocate Mr. Gohil would submit that the
petitioners are facing money decree of Rs.22,69,988/- passed by
the Trial Court impugned in the appeal. In that view of the
matter also, as the right of the First Appeal should not be taken
away on such hyper-technical grounds, with reasonable costs
also, the Appellate Court ought to have condoned the delay.
4.4. Making the above submissions, learned Advocate Mr. Gohil
would request this Court to allow the present writ application.
5. SUBMISSIONS ON BEHALF OF THE RESPONDENT:
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
5.1. Per contra, learned Advocate Mr. Pandya would submit that
the petitioners failed to make out any sufficient cause while
filing the appeal before the District Court concerned and so,
there is no error of law, much less any gross error of law
committed by the Appellate Court while rejecting impugned
delay application.
5.2. Learned Advocate Mr. Pandya would further submit that the
petitioners failed to explain the delay from the date of passing
of the judgment and decree by the Trial Court till the filing of
their appeal before the District Court concerned and in that
view of the matter, in view of the recent decision of the Hon'ble
Supreme Court of India in the case of Shivamma (DEAD) By
Lrs Vs. Karnataka Housing Board & Ors. reported In 2025
INSC 1104, this Court should not entertain the present writ
application.
5.3. Learned Advocate Mr. Pandya would further submit that even
during the course of trial of the suit, the defendants have
neither led any evidence nor remained present, whereby, the
suit went ex parte against them, resulted into decree. It is
submitted that just to defeat the fruits of the decree to be
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
enjoyed by the respondent/plaintiff, the present petitioners have
preferred the appeal.
5.4. Making the above submissions, learned Advocate Mr. Pandya
would request this Court to reject the present writ application.
6. No other and further submissions are made.
7. Heard learned Advocates appearing for the respective parties at
length.
8. Having heard learned Advocates appearing for the respective
parties and after going through the impugned order, it appears
that the petitioners, who happen to be the defendants, had
appeared through their lawyer but did not remain present and
having not led any evidence in support of their defence. In that
view of the case, a money decree came to be passed against
them. When, it came to the notice, initially they preferred an
appeal before this Court, but having found that it is not a
proper Court, they presented the appeal before the District
Court, whereby, there was a delay of around 8 months and 12
days in filing such appeal.
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
9. It is true that there are some lapses on the part of the
petitioners in presenting the appeal before the competent
Appellate Court. At the same time, the conduct of the
petitioners would not smack of any mala fide, dilatory tactics
and/or intentional delay in the proceedings. As per the settled
position of law, while adjudicating the delay application, the
Court is required to take a liberal approach and some latitude
is required to be considered to advance justice to the parties.
10. It is very well-settled position of law that in a case of any gross
negligence, dilatory tactics and/or mala fide intention on the
part of litigant to delay the trial or further legal proceedings, in
all other cases, taking liberal approach, the Court requires to
condone the delay albeit on appropriate conditions. As per the
decision of the Hon'ble Apex Court in the case of Shivamma
(supra), cited by learned Advocate Mr. Pandya, it was a case
where there is an inordinate and gross delay sought to be
condoned and in that factual scenario, the Hon'ble Apex Court
laid down the law that in such type of cases, delay should not
be condoned.
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
11. At the same time, it is also observed that the delay is required
to be properly explained from the date of passing of the
judgment/decree till filing of the appeal/further proceeding.
12. In the present case, it is remained undisputed fact that initially
the petitioners preferred the appeal before this Court within the
stipulated time, but having unmindful of fact that it is not
maintainable. Be that as it may, having came to know of the
notice, they collected back the papers of such appeal, to be
presented before the District Court concerned and so, it
appears that the lawyer of the petitioners at Rajkot contacted
by them for instituting Regular Civil Appeal. It is also true that
such presentation of appeal before this Court was in the month
of June 2024 and the appeal came to be filed before the District
Court concerned in the month of December 2024. Thereby,
there would be some lapses/negligence on the part of the
petitioners in pursuing the legal remedy. At the same time, in
the absence of any mala fide on the part of the petitioners, this
Court is of the view that, taking liberal approach to advance
justice to the parties, it is inclined to condone the delay,
inasmuch as this Court found satisfied itself that sufficient
cause made out by petitioners while instituting the appeal
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
before the competent Appellate Court. This Court has already
imposed a condition, thereby, directed the petitioners to deposit
a cost of Rs. 15,000/- with the Registry of this Court, which is
reported to be deposited by the petitioners. So, such amount
requires to be paid to the respondent.
CONCLUSION
13. In view of the foregoing reasons, the present writ application
deserves to be allowed, which is hereby allowed.
14. Accordingly, the impugned order dated 28.04.2025 passed by
the 5th Additional District Judge, Rajkot in Civil Misc.
Application No. 149 of 2024 is hereby quashed and set aside.
15. Consequently, the impugned delay application being Civil
Misc. Application No. 149 of 2024 is hereby allowed.
16. The District Court, Rajkot shall register the appeal and after
giving an opportunity of hearing to all the parties concerned,
may decide the same as expeditiously as possible.
17. The Registry is hereby directed to remit the amount of cost of
Rs.15,000/- to the respondent. Learned Advocate Mr. Pandya
NEUTRAL CITATION
C/SCA/12964/2025 ORDER DATED: 14/10/2025
undefined
shall have to supply the bank details of the respondent to the
Registry of this Court for the same to be done.
18. Direct service is permitted.
(MAULIK J.SHELAT,J)
NILESH
