Gujarat High Court

Kaminiben Wd/O Hanskamal Aatamprakash ... vs Ramaben Hanskamal Grover (Deceased) on 16 October, 2025

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                             C/SCA/13273/2025                                  ORDER DATED: 16/10/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 13273 of 2025

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                            KAMINIBEN WD/O HANSKAMAL AATAMPRAKASH GROVER & ANR.
                                                   Versus
                                RAMABEN HANSKAMAL GROVER (DECEASED) & ORS.
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                       Appearance:
                       MR KAUSHAL D PANDYA(2905) for the Petitioner(s) No. 1,2
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                       Date : 16/10/2025

                                                         ORAL ORDER

1. Heard learned advocate Mr. Kaushal D. Pandya for the

petitioner.

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

the Constitution of India seeking the following relief:-

"(A) THIS HONOURABLE COURT may be pleased to admit and allow this petition;

(B) THIS HONOURABLE COURT may be pleased to call for the record and proceedings of Civil Misc. (Delay) Application DC No.80 of 2024, along with the order dated 09.05.2025 passed thereon from the Court of the learned 12th Additional District Judge, Surat, and after perusing the same, be pleased to quash and set aside the impugned order dated 09.05.2025 passed in Civil Misc. (Delay) Application DC No.80 of 2024, (Annexure-A) and condone the delay caused in filing Regular Appeal;

(C) PENDING HEARING and final disposal of this petition, this Honourable Court may be pleased to stay the implementation, execution and the operation of the order dated 09.05.2025 passed

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in Civil Misc. (Delay) Application - DC No.80 of 2024, (Annexure- A);

(D) Be pleased to pass such other and further relief that is just, fit and expedient in the facts and circumstances of the case;"

3. The short facts appear to be that the petitioners herein

were the original plaintiffs of Special Civil Suit No. 25 of

2014, instituted before the Civil Court, Surat, against the

respondents herein, which came to be dismissed by the Trial

Court vide its judgment and order dated 05.03.2022.

3.1. After about two years and 26 days of the passing of

the judgment by the Trial Court, the plaintiffs have preferred a

regular Appeal under Section 96 read with Order XLI of the

Civil Procedure Code, 1908 (hereinafter referred to as "CPC")

before the Appellate Court. As there was a delay of around

two years and 26 days in filing such an appeal, an application

for condonation of delay, being Civil Misc. (Delay) Application-

DC No.80 of 2024, came to be filed by the plaintiffs.

3.2. The defendants appeared in the delay application and

filed their reply, thereby, contested the delay application on all

counts.

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3.3. After hearing the parties, the Appellate Court, vide its

order dated 09.05.2025, rejected the impugned delay

application. Hence, the present application.

4. Learned advocate Mr. Pandya would submit that the

Appellate Court has taken a very hyper-technical approach

while adjudicating the delay application, thereby, committed a

serious error of law, which requires to be corrected by this

Court while exercising its power under Article 227 of the

Constitution of India.

4.1. Learned advocate Mr. Pandya would submit that

plaintiff No. 1 is aged about 70 years and suffering from

cancer and plaintiff No. 2 happens to be her son, engaged in

her treatment, and could not file the appeal within a

reasonable time. It is submitted that when such would be the

cause of delay in filing the appeal, it, by all means, constitute

a sufficient cause, which ought to have been considered by the

Appellate Court.

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4.2. Learned advocate Mr. Pandya would further submit

that due to the physical limitation of plaintiff No. 2, who also

underwent some medical issue, and due to the serious illness

of her mother, the plaintiffs have been crippled down mentally

and physically and were unable to pursue the legal remedy

available to them in time. It is respectfully submitted that

considering such cause and that there is an unintentional delay

on the part of the plaintiffs in filing the appeal, the same is

required to be considered by the Court in the interest of

justice.

4.3. Learned advocate Mr. Pandya would respectfully

submit that while adjudicating the delay application, a liberal

approach is required to be taken by the Court, and requires to

avoid any hyper-technical view, thereby, the Court can

advance justice to the parties. It is respectfully submitted that

the plaintiffs are ready to pay reasonable costs for such delay

in filing the appeal, thereby, the opponents can be

compensated.

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4.4. Making the above submissions, learned advocate Mr.

Pandya would request this Court to entertain the present writ

application.

5. Having heard the learned advocate Mr. Pandya and after

going through the averments made in the impugned delay

application, and so also, after appreciating the findings so

recorded by the Appellate Court while rejecting the delay

application, it appears that there is no specific explanation

coming forth from the side of the plaintiffs/applicants, and as

such, it would not constitute sufficient cause.

6. The facts, which are observed hereinabove, are not in

dispute. The bare perusal of the delay application would

indicate that the judgment and decree passed by the Trial

Court on 05.03.2022, and it is not the case of the plaintiffs

that they were not aware about the passing of the judgment

and decree against them by the Trial Court.

7. The two facts are propounded by the plaintiffs while

submitting the delay application i.e., (i) plaintiff No. 1, being

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an old lady aged about 70 years, has been suffering from

illness since 29.11.2023, whereas plaintiff No. 2 is engaged in

her treatment. (ii) Plaintiff No. 2 suffered some physical illness

on 21.03.2022.

8. So, due to such reason, the plaintiffs could not contact

their lawyer and decided to file an appeal before the Appellate

Court.

9. One important fact, which is mentioned in the delay

application, at later part of paragraph 6, is that though,

plaintiff No. 2 fell sick on 21.03.2022, which is after the

passing of the judgment and decree by the Trial Court, and

thereafter, for his personal reason, went abroad, and due to

such reason, he could not contact his lawyer.

10. If it be so, the reasons set out in the application appear

not to be bonafide, inasmuch as, on one hand, plaintiff No. 2

is placing reliance upon medical illness of himself and his

mother, but on the other hand, was able to go abroad for his

personal work.

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11. So far as the illness of plaintiff No. 1 is concerned, the

medical treatment papers made available to this Court would

indicated that she is having illness i.e., cancer, appears to

have been detected for the first time, somewhere around

29.11.2023, which is much after the passing of the judgment

and decree, i.e., after about more than one and a half years

from the passing of the decree.

12. So, both these grounds on which the applicants sought

condonation of delay are not found to be sufficient cause

which prevented the applicants from filing the appeal within a

reasonable time.

13. The Appellate Court has considered the facts and law on

the issue germane to the matter and, having not been satisfied

with the explanation and having found an inordinate delay of

two years and 26 days in filing the appeal, did not condone

such delay.

14. At this stage, it is apt to rely upon the decision of

Honourable Supreme Court of India in a case of Rajneesh

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Kumar & Anr V/S 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 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."

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(Emphasis supplied)

14.1. 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 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

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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.

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

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unnecessarily to face such a litigation."

(Emphasis supplied)

14.2. Last but not least, 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, though liberal approach, justice-oriented approach or cause of substantial

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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)

14.3. 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

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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)

14.4. 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 has 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 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

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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)

15. So, having considered the aforesaid facts and

circumstances of the present case and having applied the ratio

of the aforementioned decision of the Hon'ble Supreme Court

to the facts at hand, I am of the view that the

plaintiffs/applicants are not in a position to satisfactorily

explain the delay in filing the regular appeal.

16. When this Court does not find any material irregularity

or any jurisdictional error committed by the Appellate Court, it

would not be appropriate for this Court to exercise its power

under Article 227 of the Constitution of India by substituting

its view over a view which is neither improper nor