Gujarat High Court
Hasmukhbhai Jaymalbhai Patel ... vs Jamnaben Wd/O Mohanbhai Lalabhai on 2 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6049 of 2019
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HASMUKHBHAI JAYMALBHAI PATEL (DECEASED) & ORS.
Versus
JAMNABEN WD/O MOHANBHAI LALABHAI & ORS.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MR SHRIKAR H BHATT(2573) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mr. Shrikar
H. Bhatt waives service of notice of Rule for
respondents.
2. With the consent of the learned Advocates appearing for
the respective parties, the matter is taken up for
hearing.
3. Heard learned Advocate Mr. Kashyap R. Joshi for the
petitioners and learned Advocate Mr. Shrikar H. Bhatt
for the respondents.
4. The present writ application is filed under Article 227 of
the Constitution of India, seeking the following reliefs:
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"(A) Your Lordship be pleased to admit this petition and allow it
by issuing the Writ of Certiorari or any other writ in nature of the
Certiorari and quash and set aside the Order passed below
Exhibit-10 in Civil Misc. Application No.29/2018 dated 14-2-
2019 rejecting the Application under section-5 of the Limitation
Act and allow the same by permitting the institution of Regular
Civil Appeal before the Additional District Judge, Ankleshwar by
the present petitioner-Defendant against the Judgement and
Decree passed in the Special Civil Suit No.132 of 2013 by
Principal Sr. Civil Judge, Ankleshwar, District Bharuch in the
interest of justice.
(B) Your Lordship be pleased to grant any other or further relief
as may be deemed fit in the facts and circumstances of the
present case considering the nature of the dispute involved herein
in the interest of justice, equity and good conscience."
5. As far as possible, the parties will be referred to as per
their original position before the Trial Court.
6. THE SHORT FACTS OF THE CASE:
6.1. The petitioners herein are legal heirs of the original
defendant who died during the pendency of the present
writ application, whereas respondents herein are
original legal plaintiffs of Special Civil Suit No.132 of
2013, which was decreed in their favour vide judgment
and decree dated 23rd February, 2017, passed by the
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Trial Court concern. The original defendant appears to
have challenged such judgment and decree before the
Appellate Court by way of regular appeal filed on 27th
April, 2018, wherein, there was a delay of around 403
days in filing such appeal. So, the defendant had
preferred Miscellaneous Civil Application No. 29 of
2018, which was opposed by the plaintiffs.
6.2. After hearing the parties, the Appellate Court vide its
impugned order dated 14th February, 2019, rejected the
impugned delay application. Hence, the present writ
application.
7. SUBMISSION OF THE PETITIONERS -
DEFENDANT:
7.1. Learned Advocate Mr. Joshi would submit that the
judgment and decree impugned in the appeal was
passed on 23rd February, 2017, but the original
defendant was not intimated about passing of such
judgment/decree by his advocate, which resulted into
delay in filing the appeal.
7.2. Learned Advocate Mr. Joshi would further submit that
when in the execution, notice came to be served upon
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the defendant, he came to know about such judgment
and decree passed by the Trial Court in favor of the
plaintiffs. It is submitted that certified copy of such
judgment and decree was applied on 12th April, 2018,
which was ready and delivered to the defendant on 19th
April, 2018 and immediately thereafter, he had
preferred appeal on 27th April, 2018. It is submitted that
as such, there is no gross negligence and/or inordinate
delay in filing such appeal.
7.3. Learned Advocate Mr. Joshi would submit that though in
the impugned delay application, the factum of non-
intimation of the judgment and decree passed by the
Trial Court by the Advocate of the defendant to him was
mentioned, but it has been expressly stated that when
the defendant came to the Trial Court, then after, such
fact came to his notice. It is submitted that in fact, at
given point of time, defendant was not made aware
about passing of the judgement/decree in question.
7.4. Learned Advocate Mr. Joshi would further submit that as
per the settled legal position of law, liberal approach is
required to be considered by the Court while
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adjudicating any delay application. It is submitted that
the explanation given by the applicant (defendant)
seeking condonation of delay requires to be considered
liberally and some latitude is always required by the
Court, which ultimately advance justice to the party.
7.5. Learned Advocate Mr. Joshi would further submit that
the precious right of appeal available to the defendant -
litigant, cannot be taken away on technicalities. It is
submitted that by imposing some conditions, including
costs, the delay could have been condoned by the
Appellate Court and having not so condoned it,
committed gross error of law.
7.6. Lastly, learned Advocate Mr. Joshi would submit that
this Court may impose any condition upon the
petitioners, including any cost and so also, they agreed
to any action taken by the plaintiffs pursuant to the
judgment and decree in execution, no equity would be
claimed by the petitioners, pending the appeal.
7.7. So, making the above submissions, learned Advocate Mr.
Joshi would request this Court to allow the present writ
application.
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7.8. To buttress this argument, learned advocate Mr.
Thakore would rely upon the following decision:
(i) Commissioner, Mysore Urban Development
Authority V/S. S S Sarvesh Reported In (2019) 5
SCC 144.
8. SUBMISSION OF THE RESPONDENTS:
8.1. Per contra, learned Advocate Mr. Bhatt appearing for
the respondents/plaintiffs would submit that there is no
error, much less any gross error of law, committed by
the Appellate Court while rejecting the impugned
application, thereby, this Court should not exercise its
supervisory jurisdiction in favor of the petitioners.
8.2. Learned Advocate Mr. Bhatt would further submit that
there is no explanation coming forth in the delay
application so filed by the original defendant while filing
the appeal, inasmuch as no details have been mentioned
which prevented the defendant not to file appeal within
time.
8.3. Learned Advocate Mr. Bhatt would further submit that
unless sufficient cause is made out by the defendant in
his delay application, no delay could have been
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condoned, which has correctly not been condoned by the
Appellate Court. It is submitted that there is nothing to
show in the delay application that the Advocate of the
defendant had not informed about the judgment and
decree passed by the Trial Court.
8.4. Learned Advocate Mr. Bhatt would further submit that
execution proceeding was instituted by the plaintiffs on
5th April, 2018 i.e. after one year of passing of the
judgment and decree and then after, such appeal was
filed, is nothing but a belated action on the part of the
original defendant, which should not be condoned by
imposing any condition.
8.5. Lastly, learned Advocate Mr. Bhatt would submit that
when there is no gross error of law and/or any
jurisdictional error committed by the Appellate Court
while passing the impugned order, this Court should not
entertain the present writ application.
8.6. Making the above submissions, learned Advocate Mr.
Bhatt would request this Court to dismiss the present
writ application.
9. No other and further submissions are made.
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10. Having heard the learned Advocates appearing for the
respective parties and after going through aforesaid
undisputed facts which are observed hereinabove, prima
facie, it appears that the defendant was not made aware
about the passing of the judgment and decree of the
Trial Court. It is true that the judgment and decree has
been seen by the learned Advocate of the defendant, but
at the same time, there is nothing on record to show that
the defendant was made aware about the passing of
such decree. It further appears that the execution
application so filed by the original plaintiffs/decree
holder on 5th April, 2018 and on getting service of
summons/notice in the execution, on 12th April, 2018,
the defendant had filed an application to get certified
copy of the judgment/decree passed by the Trial Court,
which he obtained on 19th April, 2018 and then
thereafter, filed appeal on 27th April, 2018. This would
indicate that at relevant point of time, defendant was not
made aware about of judgement/decree so passed by the
Trial Court.
11. If all these facts are taken into account, it constitutes
sufficient cause, inasmuch as, as per the settled legal
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position of law, while adjudicating delay application, a
liberal approach is required to be taken by the Court,
thereby it can advance justice to the party.
12. At this stage, it would be profitable to refer to and rely
upon the following decisions of Hon'ble Apex Court on
the issue germane in the application.
13. The Honorable Supreme Court of India in the case of N
Balakrishnan vs. M. Krishnamurthy reported in (1998)
7 SCC 123, held as under:-
"[9] It is axiomatic that condonation of delay is a matter of
discretion of the Court. Section 5 of the Limitation Act does not
say that such discretion can be exercised only if the delay is
within a certain limit. Length of delay is no matter, acceptability
of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to want of acceptable
explanation whereas in certain other cases delay of very long
range can be condoned as the explanation thereof is satisfactory.
Once the Court accepts the explanation as sufficient it is the
result of positive exercise of discretion and normally the superior
Court should not disturb such finding, much less in revisional
jurisdiction, unless the exercise of discretion was on wholly
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untenable grounds or arbitrary or perverse. But it is a different
matter when the first Court refuses to condone the delay. In such
cases, the superior court would be free to consider the cause
shown for the delay afresh and it is open to such superior Court
to come to its own finding even untrammeled by the conclusion of
the lower Court."
(emphasis supplied)
13.1.Likewise, in a case of Collector, Land Acquisition,
Anantnag V/s. MST Katiji reported in 1987 2 SCC 107 ,
wherein it has been held thus :-
"1. Ordinarily a litigant does not stand to benefit by lodging an
appeal late.
2. Refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice
being defeated. As against this when delay is condoned the
highest that can happen is that a cause would be decided on
merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a
pedantic approach should be made. Why not every hour's delay,
every second's delay? The doctrine must be applied in a rational
common sense pragmatic manner.
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4. When substantial justice and technical considerations are
pitted against each other, cause of substantial justice deserves
to be preferred for the other side cannot claim to have vested
right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately,
or on account of culpable negligence, or on account of mala
fides. A litigant does not stand to benefit by resorting to delay. In
fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of
its power to legalize injustice on technical grounds but because it
is capable of removing injustice and is expected to do so."
(emphasis supplied)
13.2.It would also be apt to rely upon following observations
so made by Hon'ble Apex Court in the Case of S. S.
Sarvesh (supra), wherein held thus:
"17. Vivian Bose J., speaking for the Bench, in his distinctive
style of writing made the following observations while dealing
with the case arising out of Order 9 and reminded the Courts of
their duty while deciding the case. The observations are apt and
read as under:
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"A code of procedure must be regarded as such. It is
procedure something designed to facilitate justice and
further its ends: not a penal enactment for punishment and
penalties; not a thing designed to trip people up. Too
technical a construction of sections that leaves no room
for reasonable elasticity of interpretation should therefore
be guarded against (provided always that justice is done
to both sides) lest the very means designed for the
furtherance of justice be used to frustrate it. Our laws of
procedure are grounded on a principle of natural justice
which requires that men should not be condemned
unheard, that decisions should not be reached behind their
backs, that proceedings that affect their lives and property
should not continue in their absence and that they should
not be precluded from participating in them. Of course,
there must be exceptions and where they are clearly
defined they must be given effect to. But taken by and
large, and subject to that proviso, our laws of procedure
should be construed, wherever that is reasonably possible,
in the light of that principle."
"19. In our view, the Courts below should have seen that the first
appeal is a valuable right of the appellant and, therefore, the
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appellant-Authority was entitled for an opportunity to prosecute
their appeal on merits. If the appellant's advocate did not appear
may be for myriad reasons, the Court could have imposed some
cost on them for restoration of their appeal to compensate the
respondent(plaintiff) instead of depriving them of their valuable
right to prosecute the appeal on merits. This is what Justice
Vivian Bose has reminded to the Courts while dealing with the
cases of this nature in Sangram Singh (supra) to do substantial
justice to both the parties to the lis. Indeed, dismissal of the
appeal in default and dismissal of the appeal on merits makes a
difference. The former dismissal is behind the back of the litigant
and latter dismissal is after hearing the litigant. The latter is
always preferred than the former."
(emphasis supplied)
14. The conjoint reading of the aforesaid decisions and its
ratio, if applied to the facts of the present case, I have
no hesitation in coming to the conclusion that case made
out for condonation of delay inas much as there is
neither any gross negligence, dilatory tactics nor any
inordinate delay on the part of the original defendant in
filing the appeal. As observed above, the right of appeal
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is a valuable right; which should not be taken away on
mere technicality i.e. delay in filing appeal. It is required
to be observed that when litigant is relying upon the
word of Advocate having engaged and not properly
either informed or advised, which ultimately causes
delay in filing appeal, such cause would constitute
sufficient cause unless contrary is proved on record. At
the same time, it is also to be taken into account that if
there would be any inordinate delay and/or negligence
on the part of the applicant in pursuing the remedy
available under law, the court may not shown any
leniency towards such litigant/applicant thereby, even
not condone such delay by imposing any condition.
15. In any case, considering the totality of facts and
circumstances of the case, I am of the view that case is
made out by the original defendant in the delay
application, whereby, it can be safely said that due to
sufficient cause, there was a delay in filing the appeal
i.e. after the period of limitation.
16. At the same time, as submitted and agreed by learned
Advocate Mr. Joshi that any benefit received by the
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decree holder (original plaintiffs) pursuant to the
execution proceedings filed by them, no equity would
claim by the petitioners herein until final outcome of the
appeal so filed before the Appellate Court. So, the
petitioners are hereby required to abide by their
aforesaid oral undertaking and words given to this
Court.
17. Nonetheless, it is required to be made clear that the
Appellate Court shall have to decide the regular appeal
so filed by the original defendant on its own merit,
without being influenced by any of the observations so
made hereinabove by this Court. The Appellate Court
shall allow the petitioners herein being legal heirs of
original defendant to be brought on record of the appeal.
18. Lastly, the respondents, who have to travel up to this
Court, requires to be compensated by the petitioners
and so, the petitioners are hereby directed to pay
Rs.5,000/- as a cost of this matter to respondent No.1
herein i.e. Jamnaben Wd/o.Mohanbhai Lalabhai, within a
period of 2 weeks from the date of receipt of copy of this
order.
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19. In view of the aforesaid observations, discussions and
reasons, the impugned order dated 14th February, 2019,
passed by the Second Additional District Judge,
Ankleshwar, in Civil Miscellaneous (Delay) Application
No. 29 of 2018, is hereby quashed and set aside.
Consequently, the Civil Miscellaneous (Delay)
Application No. 29 of 2018, filed by the original
defendant is hereby allowed, thereby, the delay of 403
days in filing the appeal is hereby condoned, subject to
the payment of the aforesaid cost and the statement
made by learned Advocate Mr. Joshi as recorded
hereinabove. Once, such cost will be paid as aforesaid,
the Appellate Court shall register the regular appeal
filed by the original defendant by permitting petitioners
herein to be brought on record and then after, decide
the appeal on its merits in accordance with law.
20. Accordingly, the present writ application is hereby
allowed. Rule made absolute to the aforesaid extent with
cost. Direct service is permitted.
(MAULIK J.SHELAT,J)
Nilesh
