Gujarat High Court
Shri Gaushala Seva Trust vs Principal Secretary, Revenue ... on 12 September, 2025
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C/SCA/12744/2025 ORDER DATED: 12/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12744 of 2025
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SHRI GAUSHALA SEVA TRUST
Versus
PRINCIPAL SECRETARY, REVENUE DEPARTMENT(DISPUTES) & ORS.
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Appearance:
MR ISHAN H RAJDEV(11634) for the Petitioner(s) No. 1
MR SHAILESH DESAI, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 12/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mr. Shailesh
Desai waives service of notice of Rule for respondents.
2. With the consent of the learned advocate appearing for
the respective parties, the matter is taken up for hearing.
3. Heard learned Advocate Mr. Ishan Rajdev for the
petitioner and learned Advocate Mr. Shailesh Desai 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 LORDSHIPS may be pleased to issue a writ of certiorari
or a writ in the nature any other appropriate writ, order or
directions quashing and setting aside the impugned order dated
14/07/2025 passed by the Ld. Principal District Court, Veraval at
Gir-Somnath in Civil Misc. Application (Delay Condonation)
Application No.20 of 2025;
b) Pending hearing and final disposal of this application, YOUR
LORDSHIPS may be pleased operation, to stay of the execution
14/07/2025;
c) Such other and further reliefs as may be deemed just and
proper in the facts and circumstances of the present case may
kindly be granted;
5. As far as possible, the parties will be referred to as per
their original position before the Trial Court.
SUBMISSION OF THE PETITIONERS - DEFENDANTS
6. At the outset learned advocate Mr. Ishan H. Rajdev
appearing for the petitioner states that delay of 209 days in
filing Regular Appeal was not condoned by the Appellate Court
thereby, petitioner - original plaintiff requires to approach this
Court.
6.1 Learned Counsel Mr. Ishan Rajdev states that there is no
intentional or deliberate delay on the part of petitioner in not
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to filing the appeal within the period of limitation. It is
submitted that judgment and decree came to be passed by the
trial Court on 19.07.2024 but learned advocate engaged by the
petitioner lately informed about passing of such
judgment/decree of trial Court on 04.03.2025. It is further
submitted that upon receiving such information, the petitioner
applied for its certified copy on 05.03.2025, which was
received on 11.03.2025, and immediately thereafter, on
15.03.2025, appeal came to be filed.
6.2 Learned Counsel Mr.Ishan Rajdev would submit that the
Appellate Court has taken very hyper-technical approach and
misdirected itself by placing reliance upon decision of Hon'ble
Supreme Court of India, which would not be applicable to the
fact of the present case. Learned counsel Mr.Rajdev would
submit that when there is no intentional delay & lapses on the
part of petitioner in filing the appeal, and as such, there is
nothing on record to suggest the same, Appellate Court could
have exercised its discretion in favour of petitioner thereby, it
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could have condoned the delay in filing appeal.
6.3 Learned Counsel Mr. Ishan Rajdev would respectfully
submits that a Regular Appeal is a very vital right and it
should not be frustrated merely on technicalities i.e. Delay. It
is respectfully submitted that as per the settled legal position
of law, while adjudicating delay application, the Court is
required to take liberal approach and so also, shown some
latitude toward the applicant. It is further submitted that
unless, there is any mala fide, dilatory tactics, and gross
negligence on the part of petitioner, the delay in filing the
appeal ought to have been condoned by the Appellate Court,
and having not done so, committed a jurisdictional error,
which may be corrected by this Court while exercising its
power under Article 227 of the Constitution of India.
6.4 Lastly, learned Counsel Mr. Ishan Rajdev would submit
that the Appellate Court could have imposed some costs upon
the petitioner for filing the appeal after period of limitation,
but in any case, Appellate Court could not have shut the door
of petitioner.
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6.5 Making the above submissions, learned Counsel Mr. Ishan
Rajdev would request this Court to allow the present writ
application.
SUBMISSION OF THE RESPONDENTS
7. Per contra, learned Assistant Government Pleader Mr.
Shailesh Desai, who vehemently opposed this writ application,
contending that there is no sufficient cause made out by the
petitioner while filing the appeal.
7.1 Learned AGP would submit that there is a gross delay of
around 209 days in filing appeal and having not properly
explained by the petitioner, no error can be found in the order
impugned in the writ application. It is submitted that
petitioner has not submitted any material on record to
substantiate the cause set out in the delay application.
7.2 Learned AGP would further submit that as per settled
legal position of law when a party is found to be negligent in
approaching higher forum, as the petitioner is in the present
case, with no condition, delay requires to be condoned.
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7.3 Lastly, learned AGP would respectfully submit that this
Court should not exercise its discretion in favour of the
petitioner while using its power under Article 227 of the
Constitution of India, in a case where neither any gross error
of law nor any jurisdictional error committed by the Appellate
Court in rejecting impugned delay application filed by the
petitioner.
7.4 Making the above submission, learned AGP would
requests this Court not to entertain the present writ
application.
8. No other and further submissions are made.
ANALYSIS
9. Having heard the learned Advocates appearing for the
respective parties and what emerges from their submissions, it
remained undisputed that prima facie, that petitioners happen
to be original plaintiffs of Regular Civil Suit No.70 of 2013,
filed a suit seeking a declaration claiming a right, title, and
interest over the suit property which belongs to defendants -
State. Such suit after recording evidence, came to be dismissed
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by the trial Court on 19.07.2024. It is the case of petitioner
that dismissal of his suit was not immediately communicated
by his advocate, but he came to know about it on 04.03.2025.
Immediately thereafter, upon obtaining certified copy of the
judgment/decree of trial Court on 11.03.2025, he filed appeal
on 15.03.2025. Consequently, there was a delay of around 209
days in filing such appeal.
10. 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:-
10.1 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
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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 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)
10.1 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)
10.2 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:
"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
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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 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
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(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)
12. The explanation coming forth on the part of petitioner
appears to be reasonable and bona fide inasmuch as this Court
could not find any mala fide intent, dilatory tactics, and/or
negligence on the part of petitioner in not filing the appeal
within the stipulated time. It is well settled legal position of
law that appeal is a right under statute available with the
litigant and such right of appeal cannot be jeopardized on
mere technicalities i.e. Delay. It is equally true that when the
court found the explanation not trustworthy and the conduct of
the applicant seeking condonation of delay is either mala fide,
causing deliberate delay and/or any misstatement made on his
behalf, no leniency can be shown to such applicant, seeking
condonation of delay even though filed appeal..
13. Nonetheless, in absence of any such facts germane from
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the application, ordinarily delay requires to be condoned by
the Court, on appropriate condition if so advised.
14. If all these facts and ratio in the aforementioned
decisions are taken into account, it constitutes sufficient cause,
inasmuch as, as per the settled legal 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. The appellate Court has not taken into account all these
factors while adjudicating delay application, which ultimately
resulted into miscarriage of justice. To that extent, order
impugned is not only erroneous but contrary to settled law.
15. 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 deposit Rs.5,000/- before
the Appellate Court to be paid as a costs of this matter to
respondents within a period of 2 weeks from the date of
receipt of copy of this order.
CONCLUSION
16. In view of the aforesaid observations, discussions and
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reasons, the impugned order dated 14th July, 2025, passed by
the Principal District Court, Veraval at Gir-Somnath, in Civil
Miscellaneous (Delay) Application No. 20 of 2025, is hereby
quashed and set aside. Consequently, the Civil Miscellaneous
(Delay) Application No. 20 of 2025, filed by the original
defendant is hereby allowed, thereby, the delay of 209 days in
filing the appeal is hereby condoned, subject to the deposit of
the aforesaid costs.
17. Once, such costs will be deposited and then paid to the
respondents 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.
18. Accordingly, the present writ application is hereby
allowed subject to the payment of aforesaid costs. Rule made
absolute to the aforesaid extent. Direct service is permitted.
(MAULIK J.SHELAT,J)
KKN
