Gujarat High Court

Khushalbhai Kikabhai Patel vs Ishwarlal Thakorebhai Nayak on 30 September, 2025

                                                                                                               NEUTRAL CITATION




                          C/SCA/12721/2016                                    JUDGMENT DATED: 30/09/2025

                                                                                                               undefined




                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    R/SPECIAL CIVIL APPLICATION NO. 12721 of 2016


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                     ==========================================================

                                  Approved for Reporting                     Yes           No
                                                                                            ✓
                     ==========================================================
                                             KHUSHALBHAI KIKABHAI PATEL & ORS.
                                                                Versus
                                         ISHWARLAL THAKOREBHAI NAYAK & ORS.
                     ==========================================================
                     Appearance:
                     MR SATISH A PANDYA(556) for the Petitioner(s) No.
                     1,1.1,1.3,2,2.1,2.2,2.3,3,4,5
                     DS AFF.NOT FILED (N) for the Respondent(s) No. 1
                     MR AJ YAGNIK(1372) for the Respondent(s) No. 2,3,4
                     ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 30/09/2025

                                                        ORAL JUDGMENT

1. Rule returnable forthwith. Learned Advocate Mr. Mehul

Dhonde for learned advocate Mr. A.J. Yagnik waives service of

notice of Rule on behalf of respondent Nos. 2 to 4. With the consent

of learned advocates for the parties, matter is taken up for final

hearing.

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

2. Heard learned Advocate Mr. Satish A. Pandya for the

petitioners and learned Advocate Mr. Mehul Dhonde for learned

Advocate Mr. A. J. Yagnik appearing for the respondents.

3. The present application is filed under Article 227 of the

Constitution of India, seeking the following reliefs:

"(A) To allow this Special Civil Application.

(B) Be pleased to quash and set aside the impugned order dated 02.05.2015 passed by the 6th Additional District Judge at Surat in Misc. Civil Application No. 198/2011.

(C) Be pleased to grant the interim relief to stay the implementation, execution and operation of the impugned order dated 02.05.2015 during the pendency of final and disposal of this application.

(D) Any other and further reliefs deemed fit and proper in the circumstances of the case be granted."

4. As far as possible, the parties will be referred to as per their

original positions before the Trial Court.

5. THE SHORT FACTS OF THE CASE APPEAR TO BE

THAT:

5.1. The petitioners herein are original plaintiffs of Regular Civil

Suit No. 12 of 1993, which was instituted against 5 persons -

defendants, who were in fact not joined in the appeal proceeding

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

instituted by respondents herein, who happens to be Trustees of Trust

namely "Dukal Koshiya Trust" (hereinafter referred to as "the

Trust").

5.2. The suit filed seeking permanent injunction against the

defendants, which was decreed in favour of the plaintiffs by the Trial

Court vide its judgment and decree dated 22.09.1999. The

respondents herein claimed to be existing trustees of the Trust,

challenged such judgment and decree by filing an appeal in the year

2011. There was an inordinate delay of more than 12 years in filing

such appeal. The delay application came to be filed being Civil

Miscellaneous Application No. 198 of 2011, impugned in this writ

application. The plaintiffs appear to have opposed such delay

application by filing the reply.

5.3. As per the case of respondents, they were not aware about

decree passed by trial Court inas much as none of defendants (old

trustees of the Trust) informed. It is submitted that when plaintiffs

mutated entry in regards to decree of civil court in revenue record, at

that time, in year 2011, legal heirs of deceased defendant No.1

brought this fact to their notice. It is stated that original defendant

No.1 died in year 2004. Further, pleaded ignorance of law.

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

5.4. After hearing the parties, the Appellate Court vide its order

dated 02.05.2015 condoned such delay, thereby allowed impugned

delay application. Hence, the present writ application.

6. SUBMISSION OF PETITIONERS-PLAINTIFFS:

6.1. Learned Advocate Mr. Pandya would submit that the

impugned order is ex facie erroneous, perverse and contrary to the

records and therefore, requires to be quashed and set aside by this

Court.

6.2. Learned Advocate Mr. Pandya would further submit that the

Appellate Court has not taken into account vital facts while

condoning such inordinate and long delay. It is submitted that

respondents herein were not joined in the suit, inasmuch as at the

given point of time, they were not trustees of the Trust in question,

when the suit was instituted. It is further submitted that when suit

was decreed against the original defendants in the year 1999, none of

such defendants chosen to either file appeal challenging such decree

granting permanent injunction in favour of the petitioners-plaintiffs

or informed respondents herein.

6.3. Learned Advocate Mr. Pandya would further submit that there

was no sufficient cause made out in the delay application filed by

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

respondents herein, inasmuch as except stating that they were not

aware about suit proceeding and ignorance of procedure of law to

challenge such decree could not be ipso facto the ground to condone

the delay.

6.4. Learned Advocate Mr. Pandya would further submit that the

Appellate Court has not even taken note of the fact that one of the

Trustee i.e. Balvantbhai Chhotubhai Desai joined as defendant no. 1,

appears to have died in the year 2004 and as such, appeal only came

to be filed in the year 2011, having received notice from revenue

department by his legal heirs in year 2011. It is submitted that when

during life time, when defendant No.1 not chosen to question the

decree, respondents cannot take shelter of revenue notice to get such

huge delay condoned. It is respectfully submitted that there was a

gross negligence on the part of respondents herein in filing such

appeal.

6.5. Making the above submissions, learned Advocate Mr. Pandya

requests this Court to allow the present writ application.

7. SUBMISSION OF RESPONDENTS-DEFENDANTS:

7.1. Per contra, learned Advocate Mr. Dhonde appearing for the

respondents would submit that once Appellate Court exercised its

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

discretion in favour of respondents, thereby, condoned the delay in

filing appeal, this Court should not interfere with such discretionary

order passed by the Appellate Court while exercising its power under

Article 227 of the Constitution of India.

7.2. Learned Advocate Mr. Dhonde would further submit that

respondents herein were not joined as party defendants in the suit

thereby, were not aware about the decree passed by the Trial Court in

favour of petitioners herein. It is submitted that when such

knowledge was gathered by respondents herein, they have

immediately preferred the appeal and thereby, the Appellate Court

condoned the delay in filing such appeal.

7.3. Learned Advocate Mr. Dhonde would further submit that land

in question belongs to the Trust and in absence of joining all trustees,

no effective decree could have been passed in favour of the petitioners

by Trial Court. It is submitted that considering the entire set of facts

and circumstances of the case, the Appellate Court has correctly

exercised its discretion in favour of the respondents and thereby

condoned the delay.

7.4. Learned Advocate Mr. Dhonde would submit that as such

there is no gross negligence or deliberate delay on the part of

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

respondents not to file appeal within stipulated time but due to

ignorance of decree and not having full knowledge, resulted into such

delay in filing appeal, which was correctly condoned by the Appellate

Court.

7.5. Making the above submissions, learned Advocate Mr. Dhonde

requests this Court to reject the present writ application.

8. No other and further submissions are made.

9. Having heard learned Advocates appearing for the respective

parties at length and after going through impugned delay application

and so also impugned order, the following facts emerge:

9.1. The petitioners herein are original plaintiffs of suit in question

filed against 5 persons - defendants who were not joined by the

respondents herein when they preferred the appeal, though they were

originally trustees of the Trust.

9.2. The suit came to be decreed in favour of petitioners herein by

the Trial Court vide its judgment and decree dated 22.09.1999,

whereby, original defendants of the suit directed not to interfere with

the possession of plaintiffs in regards to the suit property.

9.3. The respondents herein filed the appeal in the year 2011,

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

wherein, there is a delay of around 12 years. When there is such a

long, inordinate and huge delay in filing regular appeal, Court needs

to see the explanation put forward by respondents-applicants,

whereby requires to ascertain, whether any sufficient cause made out

by applicants in its delay application. It is true that more liberal

approach requires on part of Court while adjudicating delay

application. Nonetheless, such discretion requires to be judicially

exercised without norms and parameters set out by Hon'ble Apex

Court on issue of limitation vis-à-vis delay condonation.

10. There is no specific averment made as regards what transpired

at the end of original defendants after passing of decree by Trial

Court, inasmuch as those 5 individuals joined as an original

defendants in the suit, were in fact trustees of the Trust. When they

remained silent for years together, their successor in interest cannot

allow to play ignorance about passing of the decree.

11. Be that as it may, the only averment which came in the delay

application that when one of the trustee i.e. defendant no. 1-

Balvantbhai Chhotubhai Desai died in the year 2004 and some

revenue proceeding initiated by plaintiffs to get revenue entry

registered in regards to decree in question in year 2011, having

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

received the notice under Section 135(D) of the Gujarat Land

Revenue Code, 1879 by his legal heirs, thereafter, respondents herein

came to know about such decree passed by Trial Court. Such an

explanation is nothing but lame excuse as rest of defendants would

still alive when appeal filed, thereby the Trust could have easily got

details of the decree. Moreover, decree passed in year 1999, whereas

defendant No.1 died in year 2004 then at that stage also, the Trust

could have easily ascertained the status of the suit from its lawyer or

remaining defendants. Nothing has been done by respondents in this

regard except keeping quiet on the issue for such a long time i.e. 12

years.

12. The aforesaid facts and events happened since inception of the

suit till filing of appeal would show that after passing of the decree

against original defendants, no steps were taken by defendants to

challenge such decree passed by the Trial Court. The inaction of

erstwhile trustees of the Trust would bind existing trustees of the

Trust. All these acts constitute gross negligence on the part of

respondents herein to challenge judgment and decree passed by the

Trial Court way back in the year 1999, only in year 2011.

13. The Appellate Court has erroneously observed while

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

condoning the delay that respondents herein have not been joined in

the suit, thereby, they were not aware about decree. It is not clear

from the record inasmuch as it is not even a specific case made out by

the respondents herein that when the suit was instituted in the year

1993, all the respondents herein were in fact trustees of the Trust but

were not joined in the suit. If it be so, a person who was not even

trustee of the Trust when the suit was instituted in the year 1993 and

or decree, his none joining and having no notice of the suit would be

out of imagination. The Appellate Court on this wrong premise

condoned the delay which is nothing but erroneous and perverse

observation on the face of it.

14. True, once discretion exercised by Court should not be

interfered by appellate court. At the same time, it is also equally

settled that when such exercise of discretion is found erroneous,

perverse, arbitrary or contrary to settled position of law, this Court

must exercise its supervisory jurisdiction so vested in it under Article

227 of the Constitution of India. [See - Waryam Singhvs vs.

Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick

alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in

2025 SCC OnLine SC 360 (para 53 to 58) : 2025 (1) GLH 553].

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

15. At this stage, it would be apt to refer few decisions of the

Hon'ble Supreme Court of India, wherein, it is well settled legal

position of law that in a case where there is a gross negligence,

inordinate delay, or laches on the part of the applicant in not

instituting any legal proceeding within reasonable time, even if there

would any sufficient cause made out, the Court should not condone

the delay even by imposing any conditions.

15.1. It is apt to rely first relied 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:

"[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

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

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)

15.2. 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

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

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

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

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 unnecessarily to face such a litigation."

(emphasis supplied)

15.3. It is also profitable to refer to and rely upon ratio laid

down by recent past decision of Honourable Supreme Court of

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

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 justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

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)

15.4. 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 applicant has to explain the Court as to what was the

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

"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)

15.5. Even, 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 has held thus:-

"258. The length of the delay is a relevant

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

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)

16. In light of the afore-stated peculiar facts and having applied the

ratio of the above referred decisions to the case on hand, I am of the

view that respondents herein were grossly negligent in filing appeal

after about 12 years from passing of the decree by the Trial Court. As

such no sufficient cause made out by respondents in impugned delay

application.

17. In view of the aforesaid, I am not all impressed by any of the

NEUTRAL CITATION

C/SCA/12721/2016 JUDGMENT DATED: 30/09/2025

undefined

submissions made by learned Advocate Mr. Dhonde for the