Gujarat High Court
Govindbhai Somabhai Patel vs Becharbhai Manibhai Patel on 2 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15262 of 2024
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GOVINDBHAI SOMABHAI PATEL
Versus
BECHARBHAI MANIBHAI PATEL
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR MALAY S PATEL(8901) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Malay
S. Patel waives service of notice of rule on behalf of
respondent.
2. Heard learned advocate Mr. N.K. Majmudar for the
petitioner and learned advocate Mr. Malay S. Patel for the
respondent.
3. With the consent of the parties, the matter is taken up
for final hearing. The parties to this writ application will be
addressed as per their original position in the suit.
4. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
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"A) Be pleased to admit / allow this petition;
B) Be pleased to issue appropriate writ, order or direction and be
pleased to quash and set aside the impugned order dated 19.08.2021
passed by the Hon'ble Principal District Judge, Sabarkantha at
Himmatnagar passed in Civil Misc. (Delay Condone) Application No. 5
of 2021 (Annexure-E), which was preferred in First Appeal against the
judgment, order and decree dated 04.10.2017 passed in Regular Civil
Suit No. 35 of 2014 by Hon'ble Principal Senior Civil Judge, Prantij,
Dist.: Sabarkantha (Annexure-C) and be pleased to pass further orders
and be pleased to allow the application being Civil Misc. (Delay
Condone) Application No. 5 of 2021 (Annexure-D) and be pleased
pass appropriate order to for condonation of delay of 3 years, 3
months and 2 days occurred in preferring the First Appeal and the
Hon'ble Court may kindly pass further orders directing the Hon'ble
Principal District Judge, Sabarkantha at Himmatnagar to consider,
adjudicate and decide the First Appeal on its own merits (arising from
the judgment, order and decree dated 04.10.2017 passed in Regular
Civil Suit No. 35 of 2014 by Hon'ble Principal Senior Civil Judge,
Prantij, Dist. Sabarkantha), for the reasons mentioned in the present
Petition, in the interest of justice;
C) Be pleased to grant interim relief and by way of interim order, be
pleased to restrain the present respondent /original plaintiff, their
agents, servants, power of attorney holders, authorized signatory, from
alienating, transferring or creating any kind of charge and / or
mortgage with respect to at Tal.: the suit property situated Village
Mouje: Zinzava, Prantij, Dist.: Sabarkantha Sim, agriculture land
having Survey/Block No. 300, admeasuring 0-49-57 Hectare-Are-
Sq.mtrs. and be pleased to restrain from creating any third party rights
and kindly may be directed to maintain the status-quo qua possession
and title of the suit property, pending admission, hearing and final
disposal of this Petition;
D) Be pleased to pass such orders as thought fit in the interest of
justice."
Facts of the case
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5. The petitioner herein is original defendant of Regular
Civil Suit No. 35 of 2014 filed by respondent herein, which
was decreed in favour of plaintiff on 04.10.2017. The
defendant preferred an appeal before the appellate Court
concerned on 04.02.2021, thereby, there was delay of three
years, three months and two days in filing such appeal. So,
the defendant filed delay application being CMA No. 5 of
2021. The plaintiff opposed the impugned delay application
by its reply below Exh. 9.
5.1 After hearing the parties at length, the appellate Court
vide its order dated 19.08.2021 has rejected the impugned
delay application. Such impugned order is under challenged
by way of the present writ application filed on 11.09.2024 i.e.
after about 3 years of its passing.
Submission of the petitioner- defendant
6. Learned advocate Mr. N.K. Majmudar for the petitioner
would submit that the petitioner - defendant is illiterate
person and not having full knowledge of procedure of law
and so also, there was illness in the family of defendant,
which resulted into delay in filing appeal. He would further
submit that liberal approach requires to be taken by the
Court while adjudicating the delay application, inasmuch as
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hyper technical approach requires to be avoided.
6.1 Learned advocate Mr. Majmudar would further submit
that no prejudice would cause to the plaintiff if delay sought
for, could have been condoned by the appellate Court. It is
submitted that with reasonable cost which could have been
imposed upon the defendant, the delay requires to be
condoned.
6.2 Lastly, learned advocate Mr. Majmudar would submit
that sufficient cause made out by the defendant as the delay
was sufficiently explained in the impugned delay application
which was not properly appreciated by the appellate Court,
resulted into miscarriage of justice.
6.3 Making the above submission, learned advocate Mr.
Majmudar would request this Court to allow the present writ
application.
Submission of respondent-plaintiff
7. Per contra, learned advocate Mr. Malay S. Patel would
submit that there is no error much less any gross error of law
committed by the appellate Court while rejecting the
impugned delay application. Thus, this Court should not
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exercise its supervisory jurisdiction under Article 227 of the
Constitution of India.
7.1 Learned advocate Mr. Patel would further submit that
there is no sufficient cause made out in the delay
application, inasmuch as the facts which are narrated in para-
2 of the delay application, are not supported by any
evidence. It is submitted that there are false and self-
contrary statement made by the defendant in the impugned
delay application.
7.2 Learned advocate Mr. Patel would further submit that
on one hand, the defendant pretending that he was illiterate
but on next breath stated that he was informed by the
Lawyer about the impugned judgment and decree in the
appeal, which appears to have been received by the
Advocate on 27.12.2018. It is further submitted that apropos
to the notice issued by the plaintiff, the defendant replied
such notice through his Lawyer, thereby it can be assumed
that defendant was well aware about the challenge of the
impugned judgment and decree by way of appeal.
7.3 Learned advocate Mr. Patel would further submit that
the appellate Court has correctly observed that in absence of
any sufficient cause and no proper explanation assigned by
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the defendant for causing such huge inordinate delay in
filing appeal, thereby it has correctly not condoned the delay
in filing the appeal.
7.4 Lastly, learned advocate would further submit that
there is gross negligence, inaction and inordinate delay on
the part of the defendant in pursuing legal remedy by filing
appeal, such delay can't be condoned even by imposing any
condition. It is submitted that present writ application also
filed after more than 3 years from passing of impugned
order by Appellate Court which itself proved that petitioner
remained indolent at every stage of proceeding.
7.5 Making the above submission, learned advocate Mr.
Patel would request this Court to reject the present writ
application.
8. No other and further submissions being made by any of
learned advocates appearing for the parties.
Analysis
9. The facts which are narrated hereinabove are not in
dispute. This Court has not only gone through the impugned
delay application but also reasons assigned by the appellate
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Court while rejecting such delay application. It appears from
bare reading of the delay application that the reasons of
delay in filing appeal which were assigned by the defendant
are self-contrary, inasmuch as on one hand it played
ignorance of law but on next breath, he stated that he was
informed by the Lawyer about passing of the decree
impugned in the appeal but due to illness in the family, he
has not responded to his Advocate.
10. Likewise, the defendant has responded to the notice by
the plaintiff through his Lawyer and then-after he has taken
the file of the matter from his Lawyer and at that time
certified copy which was applied on 24.12.2018 received by
the Advocate on 27.12.2018 appears to have been received
by the defendant.
11. This Court could have taken very lenient and liberal
approach while adjudicating the delay application but there
is no explanation worth name, coming forth from the delay
application which constitute sufficient cause. It is not made
clear and averred in the delay application that what steps
taken by defendant on getting certified copy of the
impugned judgment and decree passed by the appellate
Court having received in the month of December, 2018. The
appeal in question appears to have been filed in the month
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of February, 2021. As such, there is no explanation so also
absence of sufficient cause which prevented defendant not
to file appeal when received certified copy of the judgment
and decree passed by the appellate Court in the year 2018
itself.
12. The appellate Court has considered all such aspects
while adjudicating the impugned delay application and found
that there is complete inaction on the part of the defendant
in filing appeal, which this Court fully agreed with such
reasons assigned by appellate Court.
13. At this stage, it would apt to rely upon the recent past
decision of Honourable Supreme Court of India delivered on
08-01-2025 in a case of H. Guruswamy & Ors. V/s. A.
Krishnaiah Since Deceased By Lrs. reported in Civil Appeal
No. 317 of 2025 reported as 2025 INSC 53, wherein held as
under :-
"[13] We are at our wits end to understand why the High Court
overlooked all the aforesaid aspects. What was the good reason for the
High Court to ignore all this? Time and again, the Supreme Court has
reminded the District judiciary as well the High courts that the concepts
such as "liberal approach", "Justice oriented approach", "substantial
justice" should not be employed to frustrate or jettison the substantial
law of limitation.
[14] We are constrained to observe that the High Court has exhibited
complete absence of judicial conscience and restraints, which a judge is
expected to maintain while adjudicating a lis between the parties.
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[15] The rules of limitation are not meant to destroy the rights of parties.
They are meant to see that the parties do not resort to dilatory tactics
but seek their remedy promptly.
[16] The length of the delay is definitely 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 herein, it appears that they want to fix their own period of
limitation for the purpose of 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, he 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.
[17] 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. No court
should keep the 'Sword of Damocles' hanging over the head of a litigant
for an indefinite period of time."
(emphasis supplied)
14. Likewise, in the case of Rajneesh 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
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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."
(emphasis supplied)
15. It is also apposite to refer and rely upon the decision 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
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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
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
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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 unnecessarily to face such a litigation ."
(emphasis supplied)
16. 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 held thus :-
"[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;
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(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 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)
17. 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:-
"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
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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)
18. Thus, in view of the aforesaid position of law, if applied
to the facts of the case, no condition can be put upon the
petitioner to condone the delay, as the Court found his act
so grossly negligent in filing appeal and in view of the
aforesaid position of law, delay in such situation can't be
condoned, which is correctly not condoned by the trial Court.
I am as such in complete agreement with the reasons
assigned by Appellate Court which neither erroneous nor
perverse.
19. Moreover, it is not out of place to observe that despite
delay application was rejected on 19.08.2021 by appellate
Court, present writ application filed after more than 3 years
i.e. 11.09.2024 from passing of said impugned order by
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Appellate Court which itself proved that petitioner remained
indolent at every stage of proceeding and very casual in his
approach.
20. Before parting, I would like to observe that it is now
well settled legal position of law that mere error of law in
passing any order by the Civil Court would not be a ground
to interfere with the order passed by the Civil Court while
exercising power under Article 227 of the Constitution of
India by this Court unless such order is either erroneous,
perverse, arbitrary and/or contrary to the provisions of law
and or made without jurisdiction. The petitioner unable to
make out any of such grounds in his present writ application
and as such none of the said ingredients have been found
present in the case on hand. In that view of the matter, no
interference can be made in the matter. [See - (i) Sameer
Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal,
reported in 2013 (9) SCC 374 (Para 6 and 7) and (ii)
Garment Craft v. Prakash Chand Goel, reported in (2022) 4
SCC 181 (Para 15 and 16)]
Conclusion
21. The upshot of the aforesaid observations, discussions
and reasons would lead to only one conclusion that
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impugned order would not suffers from any irregularity,
illegality and as such neither erroneous nor perverse,
thereby no interference required by this Court while exercise
its power under Article 227 of the Constitution of India.
22. In light of what is observed herein above, only
irresistible conclusion that there is no merit in the writ
application which requires to be rejected, which is hereby
rejected. No order as to costs.
(MAULIK J.SHELAT,J)
SALIM/
