[Cites 13, Cited by 0]
Gujarat High Court
Legal Heirs Of Decd. Mahatamsing ... vs Ambicasingh Hariharsing Rajput on 7 April, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 6009 of
2024
In R/FIRST APPEAL/1053/2013
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LEGAL HEIRS OF DECD. MAHATAMSING SHAMRATHISING RAJPUT &
ANR.
Versus
AMBICASINGH HARIHARSING RAJPUT & ANR.
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Appearance:
VIRAL K SHAH(5210) for the Applicant(s) No. 1,2
MR AMIT N PATEL(2749) for the Respondent(s) No. 1.1
UNSERVED EXPIRED (N) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/04/2026
ORDER
1. By way of the present Civil Application filed under
Section 5 of the Limitation Act, 1963, applicants have prayed
for the following reliefs:
"11(A) This Hon'ble Court may be pleased to allow the
application and condone the delay of 2154 days in filing the
Civil Application;
(B) This Hon'ble Court may be pleased to pass such other and
further relief in favour of the applicant, as deemed just and
proper, in the facts and circumstances of the case."
2. Going to the facts of the case, by way of First
Appeal, the appellants have preferred the present First
Appeal challenging the judgment and decree passed in Civil
Suit No.267 of 2007, whereby the suit of respondent was
decreed in his favour, directing the appellants to handover the
peaceful and vacant possession of the suit property. During
the pendency of the suit, the sole respondent expired on
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20.08.2018. The present applicants have filed the present
application to condone the delay caused in preferring the
application for setting aside the abatement and for bringing
on record the heirs and legal representatives of the deceased-
respondent.
3. Heard learned advocate Mr.Jay S. Dakwala for
learned advocate Mr.Viral Shah appearing for the applicants
and learned advocate Mr.Amit Patel for respondent No.1.1.
4. Learned advocate appearing for the applicants-
original petitioner mainly submitted that the petitioner was
not aware about the death of the sole respondent. He further
submitted that, though the learned advocate appearing for the
petitioner had been informed about the death of the sole
respondent, no steps were taken to file an application for
bringing on record the heirs and legal representatives of the
sole respondent. He also submitted that the applicants cannot
be made to sufferer for the fault of the learned advocate. He
submitted that, by filing the present application alongwith an
additional affidavit, applicants have sufficiently explained the
delay and has made out case for its condonation. Thus,
learned advocate for the applicant prayed that, this Court
should take a pragmatic approach and condone the delay,
particularly when the First Appeal has already been admitted
by the Co-ordinate Bench by order dated 17 th September,
2013.
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4.1 Upon above submissions, learned advocate for the
applicants have prayed to allow the present application.
5. As against the aforesaid submissions, learned
advocate appearing for the proposed heirs referred to the
letter dated 12th December, 2019 written by learned advocate
for the deceased -respondent to the learned advocate
appearing for the appellants and submits that, on 12 th August,
2018, learned advocate appearing for the respondent had
been elevated to the Bench of this High Court and had
informed to the learned advocate appearing for the appellants
about the death of the sole respondent. He further submitted
that, alongwith the letter, a copy of the death certificate was
also supplied, and the details of the heirs and legal
representatives of sole respondent were also provided. He
referred to Annexure-R/1 and submitted that the learned
advocate appearing for the respondent had followed the
statutory mandate under Order XXII of the Code of Civil
Procedure, therefore the appellants cannot now claim that
they were not aware about the death of the respondent.
5.1 In view of the above submissions, he submits that
the present application is devoid of merit, deserves no
consideration. Therefore he prayed to dismiss the present
application.
6. I have heard learned advocates for both sides. The
facts remain that the appellants challenge the eviction order
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passed by the learned City Civil Court. The petitioner was in
possession of the suit property on the basis of an Agreement
to Sell, pursuant to which, a decree for specific performance
was passed. In the present application seeking condonation of
delay, the applicants have set out the reasons for condoning
the colossal and huge delay of 2154 days in paragraph Nos. 3
to 9.
7. In Additional Affidavit, the applicants have pleaded
in para 4 to 10 as under:-
"4. It is respectfully submitted that the sole respondent
Ambicasingh Hariharsing Rajput unfortunately has passed away
on 20.08.2018. Which was not in my immediate knowledge.
5. Subsequently, the deponent had continued to pay mesne
profit in accordance with the order passed by Hon'ble court,
and such payments are being made regularly till date.
6. It is submitted that the deponent had noticed that the mesne
profit was later being accepted by the Son of Respondent. The
appellant in good faith, assumed that the payments being
accepted by the son maintained status quo regarding the
proceedings.
7. It is submitted that I am a layman without any formal
education and therefore unaware about the law.
8. It is humbly submitted that thereafter, the captioned First
appeal was listed on 19.11.2024 for issuance of notice to the
respondent as their advocate is elevated as a Hon'ble Judge
before this Hon'ble court.
9. It is humbly submitted that thereafter, the First appeal that I
had preferred was listed on 19.11.2024 for issuance of notice to
the respondent as their advocate is elevated as a Hon'ble Judge
before this Hon'ble court. It is submitted that the said notice
could not be served as the sole respondent had expired.
Noticing such development, my advocate had contacted me and
It was advised to me by my advocate to immediately prefer the
civil application for bringing legal heirs and setting aside of
abatement and therefore I
10. It is humbly submitted that the delay that has happened in
preferring the civil application is neither intentional nor
deliberate but has solely occurred because the deponent was
totally unaware about the passing of the sole respondent.
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Therefore, it is respectfully submitted that the appellant has
acted in good faith by complying with the court's directions and
have no prejudice towards the legal heir of the Respondent.
8. Before venture to address the merits of the case, I
may also refer to para 4 to 9 of the Affidavit-in-reply filed by
the proposed heirs as under:
"4. In reference to para 3 of the aforesaid Civil Application
it is submitted that it is not true that advocate for the
applicants came to know about the death of the respondent
(Ori. Plaintiff) after matter came on board on 19/11/2024 for
issuance of notice to opponents.
It is submitted that the legal heirs of the applicant and
deceased respondent are close relatives and therefore the legal
heirs of the applicant are very well aware about the death of
respondent (Ori. Plaintiff) from the date of death i.e.
20/08/2018. But however with the malafide intention to prolong
the present First Appeal, the present applicants had not filed
the application for joining legal heir of the deceased respondent
which clearly establishes and prove the malafide intention of
the applicants.
5. In reference to para 4 of the civil application it is
submitted that concern previous advocate of the respondent
has already written letter to the advocate of the applicants on
12/12/2018 informing about the death of the respondent
alongwith the copy of death certificate and had also informed
the name of the legal heir of the deceased respondent. That the
said letter was received and duly acknowledged by the clerk of
the advocate of the applicants on 13/12/2018.
It is submitted that thereafter also the applicants had not
taken any steps for joining the legal heir of deceased
respondent. Hence the concern previous advocate of the
respondent had written Note dated 28/08/2024 to the Registrar
Judicial of this Hon'ble High Court intimating about the
abatement of the present First Appeal no.1053/2013. Copy of
the letter dated 12/12/2018 written to the advocate of the
applicants and Note dated 28/08/2024 written to Registrar
Judicial is annexed herewith at ANNEXURE R1 AND R2
respectively.
6. In reference to para 5 it is not true that the applicants
were unware about the process of setting aside the abatement.
It is submitted that the applicants have engaged an advocate
and therefore they can very well take an advice from their
advocate and could have taken necessary step to set aside
abatement.
7. In reference to para 6 it is submitted that the reason
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about the belief of paying mesne profit to the son of the
deceased respondent has no concern with filling civil
application for setting aside of abatement and joining of legal
heirs in the First Appeal.
8. In reference to para 7 it is submitted that applicants
have not stated the date on which they came to know about the
death of deceased respondent which clearly establish malafide
intention to come out from the delay of setting aside abatement
of appeal and joining legal heir in appeal. It is further
submitted that applicants have also not stated on which date
they have contacted their advocate and on which date they
have gathered the information about filling of civil application
for setting aside of abatement which also clearly proves
malafide intention of applicants.
9. In reference to para 8 it is submitted that it is not true
that there is no intentional delay or any deliberate negligence,
in action or malafide on the part of applicants in preferring the
present civil application.
10. In reference to para 9 it is submitted that the prayer sought
by the applicants cannot be granted in interest of justice since
it is deliberate and intentionally and malafide intention to
prolong the matter."
9. I may also refer to Annexure R1 and R2 which read
as under:-
"R1 1. You have filed subject first appeal being FA/1053/2013
wherein am appearing for respondent Mr. Ambicasing Rajput
who is reported be died on 20-08-2018. Find herewith a copy of
his death certificate.
2. As per details received from his family, he has
bequeathed su property to his only son namely Mr.
Shrinivassing Amicasing Rajpu Aged about 48 years residing
with deceased respondent at addre given in cause title of suit.
He is only legal heirs of deceas respondent requires to be
brought on record as per Order 22 of CPC..
3. You are requested to take note of said fact and take
appropria steps in subject appeal in accordance with law."
"R21. I have appeared for original sole respondent in
R/FA/1053/2013 and my client sole respondent Mr. Ambicasing
Rajput died on 20-08-2018 which is duly intimated to Id.
advocate of Appellants vide my letter dated 12-12-2018 duly
acknowledge by his clerk on 13-12-2018.
2. The copy of said letter with acknowledgement is annexed
herewith alongwith cop of death certificate of sole respondent.
3. As no effective steps taken out by appellants to bring
legal heirs of deceased sole respondent within stipulated time
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then R/FA/1013/2013 stands abated.
4. Thus, in view of above, kindly circulate this note and
place subject appeal R/FA/1013/2013 before hon'ble court to
pass an appropriate order in the matter."
10. From the aforesaid pleadings, rival contentions and
upon perusal of Annexures R/1 and R/2, it emerges that the
learned advocate appearing for the sole respondent was
expired on 20th August, 2018. It was informed to the learned
advocate appearing for the petitioner that the sole respondent
had expired on the said date, and copy of the death certificate
alongwith details of the heirs and legal representatives were
also supplied in accordance with Order XXII of the CPC.
Annexure-R2 indicates that, letter dated 12 th December, 2018
was acknowledged by the clerk of the learned advocate. By
this letter, learned advocate appearing for the respondent,
informed the Registrar (Judicial) that the matter is now stand
abated as the heirs and legal representatives of the deceased
are not brought on record within the stipulated period. It is
unfortunate that, despite the said communication (Annexure-
R2) addressed to the Registrar (Judicial), the matter was not
disposed of and continued on the docket.
11. It is evident that the learned advocate appearing
for the respondent, by following his statutory duty under
Order XXII of the CPC, informed the learned advocate
appearing for the appellant-petitioner about the death of the
respondent and furnished details of the heirs and legal
representatives of the deceased-respondent. Thus, he has duly
discharged his duty. However, learned advocate for the
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applicants failed to take steps to bring on record the heirs and
legal representatives of the deceased within the stipulated
period.
12. It is clear that the learned advocate appearing for
the applicants was well aware about the death of the
deceased respondent. The petitioner was required to remain
vigilant in these proceedings and cannot shift the blame upon
the advocate to avoid his own liability.
13. In the aforesaid factual background, no reason is
disclosed which can be said to satisfactorily explain the delay.
This Court, in the case of Jamnagar Municipal Corporation vs.
Vinodchandra Purushottam Variya passed in Civil Application
No. 2 of 2017 in Second Appeal No. 389 of 2017, along with
Second Appeal No. 389 of 2017, addressed this issue in
paragraphs 8 to 10, which read as under:
"8. The Supreme Court in case of Rajneesh Kumar & Anr v.
Ved Prakash, reported in 2024 (14) SCALE 406, has also noticed
the growing tendency of throwing the blame upon the head of the
learned advocate appearing for the petitioner while seeking the
condonation of delay 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 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."
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[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, reported in 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)."
9. It is apposite to refer to the decision in the case of K.B. Lal
(Krishna Bahadur Lal) v. Gyanendra Pratap & Ors.,
reported in 2024 (4) Scale 759, whereby the Apex Court
revisited the law on the aspect of condonation of delay and 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 de 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,
nonpedantic 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
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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 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)"
10. With profit, I may also refer to the judgment of the Apex
Court in the case of Pathapati Subba Reddy (Died) BY L RS &
ORS v. Special Deputy Collector (LA), reported in 2024 INSC
286, whereby the Supreme Court, after referring the previous
decisions, summarized the case law on the issue of limitation vis-
a-vis condonation of delay in context of 'sufficient cause' and it
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
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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 ling
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).
14. Applying the aforesaid principles, this Court is of
the opinion that the applicants have failed to make out any
case for condonation of delay. It is an onerous duty upon the
petitioner to explain the delay with sufficient, cogent, and
convincing reasons, and also to demonstrate that he acted
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with due diligence and the delay is not mala fide. One cannot
keep the "Sword of Damocles" hanging over the head of the
respondent for an indefinite period, to be determined at the
whims and fancies of the appellants. Except for general and
vague pleadings, no specific explanation has been given to
condone the colossal and huge delay of 2154 days.
15. For the foregoing reasons, the present application
stands dismissed. Notice is discharged.
16. Accordingly, First Appeal, stands abated. Interim
relief, if any, stands vacated. R&P, if any, be sent back to the
concerned Court.
17. Conected Civil Application, if any, does not survive
and stands diposed of accordingly.
(J. C. DOSHI,J)
MANOJ
