Gujarat High Court
Heirs Of Decd. Babarbhai Fakribhai ... vs Heirs Of Aashabhai Babarbhai Thakor on 26 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13151 of 2025
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HEIRS OF DECD. BABARBHAI FAKRIBHAI THAKOR & ORS.
Versus
HEIRS OF AASHABHAI BABARBHAI THAKOR & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,1.1,1.2,1.2.1,1.2.2,1.2.3,1.2.4,1.3,1.3.1,1.3.2,1.3.3,1.4,2,2.1,2.2,2.3,2.4
MR VEDANT D GAIKWAD(10444) for the Petitioner(s) No.
1,1.1,1.2,1.2.1,1.2.2,1.2.3,1.2.4,1.3,1.3.1,1.3.2,1.3.3,1.4,2,2.1,2.2,2.3,2.4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 26/09/2025
ORAL ORDER
1. Heard learned advocate Mr. S.P. Majmudar with learned
advocate Mr. Vedant D. Gaikwad for the petitioners. At the
outset, learned advocate Mr. Majmudar tender further
affidavit dated 25.09.2025 of petitioner No. 2.3, which is
allowed to be taken on record.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :
"A) YOUR LORDSHIPS may be pleased to issue a writ of Certiorari
or a writ in the nature Certiorari or of any other appropriate writ, order
or direction quashing and setting aside order dated 23.05.2025 passed
by 4th Additional and District Sessions Judge, Anand in Civil Misc
Application No. 78 of 2024 and further be pleased to allow application
being Civil Misc Application no. 78 of 2024 (at ANNAEXURE-F
hereto);
B) During the pendency and final disposal of the present petition
YOUR LORDSHIPS may be pleased to Stay execution proceedings
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being Civil Misc Application No. 57 of 2021 pending before pending
before Additional Senior Civil Judge and ACJM Annexure-1) at Borsad
(At
C) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case."
2.1 As far as possible, parties will be referred as per their
original position in the suit.
Facts of the case
3. The petitioners herein are original defendants of
Regular Civil Suit No. 221 of 1983 instituted by respondents
herein - the plaintiffs for getting possession of the suit land
and mesne profit, which came to be allowed by trial Court
vide its judgment/decree dated 30.10.1991 in favour of
plaintiffs.
3.1 Being aggrieved by the order dated 30.10.1991 passed
by the Civil Judge (J.D.) at Borsad in Regular Civil Suit No.
221 of 1983, the petitioners herein - defendants preferred
the First Appeal before the appellate Court i.e. District Court
by way of Civil Appeal No. 4 of 1992, wherein the District
Court by order dated 15.03.1997 allowed the Appeal and set
aside order dated 30.10.1991 passed in Regular Civil Suit
No.221 of 1983.
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3.2 Being aggrieved by order dated 15.03.1997 passed by
2nd Extra Assistant judge Kheda at Nadiad, respondents
herein preferred Second Appeal before this Court being
Second Appeal No.169 of 1997. This Court by order dated
29.11.1999 disposed of the Second Appeal as Withdrawn
with a liberty to file appropriate application.
3.3 Thereafter, the respondents herein preferred an
application being Civil Misc Application No. 13 of 2000, which
was renumbered as Civil Misc Application No. 17 of 2009 to
restore Regular Civil Appeal. The said application came to be
allowed by order dated 10.04.2015, wherein the Principal
District Judge, Anand has condoned the delay of 42 days and
further directed to register Regular Civil Appeal on payment
of Rs.100/- towards cost to each opponents. As per order,
the money of cost was to be paid to Babubhai Jivabhai,
Gotabhai Babarbhai, Gordhanbhai Babarbhai, Madhuben
Babarbhai and Chanchalben Babarbhai. Then-after, Regular
Civil Appeal 4 of 1992 was renumbered as Regular Civil
Appeal No. 3 of 2017.
3.4 It appears that renumbered Regular Civil Appeal No.3
of 2017 was listed in year 2017 wherein one of appellant no.
½ himself declared and informed the appellate Court about
death of appellant No. 1/1 and respondent No. 1 & 5 vide
purshish Exh. 43 filed on 26.09.2017, but no steps taken by
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appellants to bring their legal heirs on record. It appears that
learned advocate of respondent filed an application below
Exh. 44 on 30.10.2018 for dismissing the appeal for default.
So, on noticing the above conduct of appellants, on
24.06.2021, appellant Court dismissed Regular Civil Appeal
no. 3 of 2017 as dismiss for default.
3.5 On dismissing said regular appeal, the original Plaintiff -
respondents herein have preferred execution petition being
Execution Petition No. 57 of 2021 before the Additional
Senior Civil Judge Court at Borsad, wherein the Court has
issued notice to the present applicants-petitioners.
3.6 So, having received notice in execution, feeling
aggrieved by order dated 24.06.2021 passed by the Principal
District Judge, Anand, the petitioners herein preferred an
application for restoration of Regular Civil Appeal No. 3 of
2017 on 26.07.2024 along with application for condoning the
delay of 3 Years and 29 days being Civil Misc Application No.
78 of 2024 in preferring restoration application. The
aforesaid Civil Misc Application no. 78 of 2024 came to be
rejected by order dated 23.05.2025.
3.7 Being aggrieved and dissatisfied with the order dated
23.05.2025 passed by 4th Additional District & Sessions Judge
at Anand, the present writ application is being filed.
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Submission of the petitioners - defendants
4. Learned advocate Mr. S.P. Majmudar with learned
advocate Mr. Vedant Kaikwad for the petitioners would
submit that the appellate Court having not appreciated the
facts and circumstances of the present case and taking very
hyper technical approach in rejecting the delay application
which would cause great hardship and injustice to the
defendants.
4.1 Learned advocate Mr. Majmudar would further submit
that a liberal approach requires to be adopted by the
appellate Court while adjudicating the delay application and
having not done so, committed jurisdictional error, requires
to be corrected by this Court while exercising its power
under Article 227 of the Constitution of India.
4.2 Learned advocate Mr. Majmudar would further submit
that there would not be any harm/ prejudice cause to the
other side, if delay could have been condoned by the
appellate Court, inasmuch as the Court can decide the lis
between the parties on its merit.
4.3 Learned advocate Mr. Majmudar would further submit
that when there is no mala-fide intention on the part of the
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applicants -petitioners herein not to file any restoration
application in time, such delay ought to have been condoned
in the interest of justice. It is submitted that by imposing
cost also delay could have been condoned by the Court.
4.4 Learned advocate Mr. Majmudar would submit that
when appellate Court vide its order dated 10.04.2015 when
condoned delay in filing restoration application so filed by
respondents herein, appeal could not have been
automatically registered as ordered, thus, there would no
occasioned for appellate Court to dismiss the appeal for
default. It is submitted that even cost could not have been
paid by respondents herein to appellants as some of them
already died.
4.5 Making the above submission, learned advocate Mr.
Majmudar would request this Court to condone the delay in
the interest of justice and if so directed, the petitioners-
defendants are ready and willing to compensate the other
side by paying cost. Thus, requested this Court to allow the
present writ application.
Analysis
5. The facts which are observed herein above not in
dispute. The appellate Court has not found any merit in the
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delay application whereby, it could not found any sufficient
cause thereby, impugned delay application was rejected.
6. As such, there was a inordinate delay of 3 years and 29
days in preferring restoration application by the defendants.
True, the length of delay is not required to be taken into
account while adjudicating delay application but when there
is an inordinate delay, the Court is required to consider
entire set of conduct of the applicants who sought
condonation of delay as well as explanation coming forth in
the delay application.
7. It appears from the record that there is a gross
negligence on the part of the defendants as there is nothing
on record to suggest that in those 3 years and 29 days, what
had been done by defendants in regards to verify the status
of their appeal especially when reported to the Court about
factum of death of some of appellants and respondents as
the case may be that too in year 2017.
8. Furthermore, execution application came to filed in year
2021 and it appears from its record that notice/summons in
such execution application filed by plaintiffs must have been
received in year 2021/2022 but restoration application came
to be filed only on 26.07.2024. It is also to be noted that in
delay application, nowhere it whispered by petitioners as to
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on which date, execution notice/summons received and what
steps thereafter taken by them.
9. When there is such a vague excuse submitted by the
applicants which is not supported by the material particulars,
there is a reason to believe that such averment is made just
to gain sympathy of the Court especially when plaintiffs have
objected delay application.
10. It remains undisputed fact as also observed by the
appellate Court while rejecting the delay application, that
after giving several opportunities to the petitioners herein -
defendants to pursue the case but neither the petitioners
nor their Advocates were present. When some of appellants/
respondents reported died and not steps taken, appeal itself
would stand abated as decree passed seems not separable
one.
11. So far submission so canvassed by learned advocate Mr.
Majmudar that when appellate Court condoned delay in
filing restoration application of plaintiffs could not have
order to register the appeal, such an argument at this stage
would not be permissible and available to petitioners for
simple reason, that undisputedly petitioners though aware
about order dated 10.04.2015, not questioned it at given
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point of time. It is settled law that rule of procedure is
handmaid of justice and hyper-technical approach requires to
be avoided by Court. So, once appeal came to be registered,
no such plea can be entertained. It further appears that once
regular appeal came to be registered as per said order,
petitioners had participated in the appeal proceeding for
sometime which can be confirmed by purshish Exh. 43
submitted by appellant No.1/2 on 26.09.2017. Such an
argument is not only misconceived on facts but at law, thus,
rejected.
12. It is well settled legal position of law that if the Court
found that there is gross negligence and inordinate delay by
the applicants in pursuing legal remedy thereby, seeking
condonation of delay, even if there is sufficient cause made
out, the Court would not lean towards such applicants by
imposing any condition for condoning the delay, as it was
caused due to his own negligence.
13. At this stage, it is apt to rely upon the decision of
Honourable Supreme Court of India in a 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.
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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."
(Emphasis supplied)
13.1 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
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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
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.
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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 unnecessarily to face such
a litigation."
(Emphasis supplied)
13.2 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
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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 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)
13.3 It is also profitable to rely upon the decision of the
Hon'ble Supreme Court of India in the case of Basawaraj
and Another v. Special Land Acquisition Officer reported in
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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 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)
13.4 Last but not least, 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 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 held thus:-
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"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 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)
14. Thus, in view of the ratio laid down by the Hon'ble Apex
Court in the aforementioned decisions, if applied to the facts
of the present case on hand, it would lead to only one
conclusion that defendants having found grossly negligent in
prosecuting their legal remedy, in that circumstances, the
delay application could not have been allowed which is
correctly not allowed by the appellate Court.
15. In light of the aforesaid facts and circumstances as well
as position of law stand as on date, I am unable to agree with
any of the submissions so made by the learned advocate for
the petitioners and as such I am in complete agreement with
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the view taken by the appellate Court.
16. Lastly, this Court, while exercising powers under
Article 227 of the Constitution of India, cannot interfere with
every order passed by the trial Court at a drop of the hat. Its
now settled that merely because a second view is possible, it
would not be ground to interfere. As such, there is no
possibility of taking another view than taken by appellate
Court. [See : Sameer Suresh Gupta TR PA Holder vs. Rahul
Kumar Agarwal, reported in (2013) 9 SCC 374 (Para 6 and
7) and Garment Craft v. Prakash Chand Goel, reported in
(2022) 4 SCC 181 (Para 15 and 16)].
Conclusion
17. In view of the foregoing observations, discussions, and
reasons, the present writ application is bereft of merit and
requires to be rejected, which is hereby rejected.
18. The impugned order dated 23.05.2025 passed by 4 th
Additional and District Sessions Judge, Anand in Civil Misc
Application No. 78 of 2024 is hereby confirmed. No order as
to costs.
(MAULIK J.SHELAT,J)
SALIM/
