Gujarat High Court
Maheboobbhai Gafarbhai Khalifa vs Bhikhabhai Hadubhai Jesadiya on 10 January, 2025
NEUTRAL CITATION
C/SCA/14347/2024 ORDER DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14347 of 2024
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MAHEBOOBBHAI GAFARBHAI KHALIFA
Versus
BHIKHABHAI HADUBHAI JESADIYA
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/01/2025
ORAL ORDER
1. The present petition is filed under Article 227 of the Constitution of India seeking following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to admit and allow this petition.
(B) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or directions, quashing and setting aside the order dated 19.01.2024 passed by the Ld. Additional District Judge, Jamnagar in Civil Misc. Application No. 87 of 2023 and in further may be pleased to allow the application of the petitioner being Civil Misc. Application No. 87 of 2023, (Annexure-A), as prayed for, in the interest of justice;
(C) Pending admission, hearing and final disposal of the above application YOUR LORDSHIPS may be pleased to stay further operation, execution and implementation of the impugned order dated 19.01.2024 passed by the Ld. Additional District Judge, Jamnagar in Civil Misc. Application No. 87 of 2023, (Annexure-A) in the interest of justice;
(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require."Page 1 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025
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2. The parties will be referred to as per their original position before the Trial Court.
3. FACTS OF THE CASE:-
3.1 The petitioner happens to be the Original Plaintiff of Special Civil Suit No. 119 of 2010 filed before the Civil Court, Jamnagar. The suit appears to have been filed to execute the sale deed in favour of the Original Plaintiff. After hearing the parties and considering the evidence on record, the Trial Court, vide its judgment and decree dated 30.03.2013, dismissed the suit.
3.2 After dismissal of the suit, the Original Plaintiff intended to challenge the same by way of an appeal. As there was a delay of 9 years, 7 months and 338 days in filing such appeal, the petitioner - Original Plaintiff had filed Civil Miscellaneous Application No.87 of 2023 to condone the delay in preferring the appeal.
3.3 The original defendant appears to have objected to such a long, inordinate, and unexplained delay on the part of Page 2 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined the Original Plaintiff in filing the First Appeal by filing their reply Ex.10.
3.4 After hearing the parties and considering the averments made in the application, the Additional District Judge, Jamnagar, rejected the delay application, vide its impugned order dated 19.01.2024.
3.5 Being aggrieved and dissatisfied with the rejection of the delay application of the petitioner - original Plaintiff by the Additional District Judge, Jamnagar, vide its impugned order dated 19.01.2024, passed in Civil Miscellaneous Application No.87 of 2023 for condonation of delay in preferring the appeal, the present petition has been filed.
4. CONTENTIONS OF THE PETITIONER:-
4.1 Learned Advocate Mr Pratik Y. Jasani for the petitioner - Original Plaintiff would submit that the learned District Court, without appreciating the averments made in the application and without appreciating the law laid down by the Hon'ble Apex Court of India while adjudicating the delay Page 3 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined application, has erroneously rejected the application of the Original Plaintiff in filing its Appeal.
4.2 He would further submit that the non-intimation of the impugned judgment and decree passed by the Trial Court by the advocate engaged by the Original Plaintiff resulted in the delay in filing the Appeal.
4.3 He would further submit that for some time, the plaintiff could not contacted his lawyer but as soon as, he came to know that defendants is in process of sale of the suit property, at that point of time, the original plaintiff contacted their lawyer and came to know about the dismissal of Special Civil Suit No. 119 of 2010 on 30.03.2013.
4.4 He would further submit that there is no malafide, or dilatory tactic used by the Original Plaintiff, and there is no ill-intention on the part of the Original Plaintiff to file the appeal after delay of 9 years, 7 months and 338 days.
4.5 He would further submits that there is no negligence and or gross negligence on the part of the petitioner in filing Page 4 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined the appeal after this much delay.
4.6 Mr. P.Y.Jasani, learned advocate has concluded his argument with the request that, considering the fact, plaintiff was not aware of the fact of the dismissal of the suit in question, so, he would request that, on suitable conditions/cost, if this Court deems it fit to impose upon the Original Plaintiff, the delay may be condoned.
4.7 No other and further submissions being made by learned advocate for the petitioner.
4.8 On query being asked by this Court about position of suit property as on date, Mr. Jasani, learned advocate, under the instruction of his client, has candidly states that as on date, suit property has been sold by the original defendants to third party.
5. ANALYSIS / REASONING 5.1 Before adverting to the whole issue germane in the present petition, this Court would like to remind itself and would like to refer decision of the Hon'ble Supreme Court of Page 5 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined India in the case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein the law has been summarized thereby the scope of the power of the High Court while exercising its power under Article 227 of the Constitution of India has been elaborated. The relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-
07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or Page 6 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the Page 7 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ( (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
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(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Page 9 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly Page 10 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
5.2 It is also apt to reply upon the decision of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to Page 11 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v.
Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice Page 12 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to."
5.3 I have gone through the averments made in the petition as well as the documents annexed and also perused the impugned delay application as well as the impugned order passed thereon by the District Court concerned, which is under challenged herein.
5.4 It appears from the documents made available with the petition that the judgment/decree, challenged in the appeal, were passed on 30.03.2013. The Original Plaintiff, in its delay application, only averred that due to fault on the part of plaintiff i.e. himself, he could not contact, at the relevant point of time, to his own advocate thereby could not verified status of his suit. Nonetheless, as soon as, he came to know Page 13 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined about the process of selling of the suit property by defendant, immediately, he had contacted his lawyer and filed Regular Appeal on 20.04.2023 wherein, impugned delay application came to be filed on 03.05.2023. Prima facie, this is nothing but a gross negligence on the part of the petitioner in pursuing legal remedy available to him in law.
5.5 Moreover, the only averment made in the delay application in relation to not preferring the appeal within stipulated time is due to non-contacting his lawyer by the plaintiff. The impugned judgment came to be passed on 30.03.2013, whereas, Regular Appeal appears to have been presented on 20.04.2023. The cause, which is stated in the delay application by no stretch of imagination, can be considered as a sufficient cause. Furthermore, an affidavit in support of delay application suggesting one fact that though it was sworn on 28.11.2022 but appears to have been filed on 03.05.2023 that too about after 4 months from preparing the delay application. This conduct itself shows that all Page 14 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined throughout, plaintiff remained lethargic and negligent in preferring his legal remedy.
5.6 True, the length of delay is not material while considering any delay application, but when there is gross delay, like in the present case on hand, i.e., 9 years, 7 months and 338 days delay in filing the appeal, there is some relevance to length of such gross delay. After going through the documents annexed to the petition, it has come on record that there is a complete inaction, negligence and lethargy on the party of plaintiff not to initiate any action after passing of the impugned judgment and decree and even not to bother to contact his lawyer for quite long time, though length of appeal is not material factor, but considering the aforesaid facts and circumstances of the case, this Court cannot ignore the act of plaintiff, who remained silent for years together whereby ultimately equity in favour of third party has been created.
5.7 At this stage, it is profitable to refer and rely upon Page 15 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined recent passed decision of the Hon'ble Apex Court of India in the case of H. Guruswamy & Ors. V. A. Krishnaiah Since Deceased by Lrs. Delivered in Civil Appeal No. 317 of 2025 on the very aspect of "sufficient cause", "Criteria / factors to consider while condoning the delay", "applicability of law of limitation in a case of condonation of delay" and "approach of the Courts while considering application for condonation of delay". Relevant paras are as under:-
"13. We are at our wits end to understand why the High Court overlooked all the aforesaid aspects. What was the good reason for the High Court to ignore all this? Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as "liberal approach", "Justice oriented approach", "substantial justice" should not be employed to frustrate or jettison the substantial law of limitation.
14. We are constrained to observe that the High Court has exhibited complete absence of judicial conscience and restraints, which a judge is expected to maintain while adjudicating a lis between the parties.
15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.Page 16 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025
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16. The length of the delay is definitely 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 herein, it appears that they want to fix their own period of limitation for the purpose of 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, he 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.
17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time."
5.8 It is apposite to refer to and rely upon a 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 Page 17 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined 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 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 Page 18 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined 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."
Page 19 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined 5.9 Last but not least, 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 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 Page 20 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined 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 5.10 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 "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, Page 21 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined 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."
5.11 It is also profitable to rely upon the decision of this Court in the case of Samusunisha Begaum W/o Dr Nasarullahkhan Dhaniani Versus Vishnukumar Ambelal Patel reported in 2012 (3) GLR 2565; 2012 (0) AIJEL-HC 226913, wherein it has been held as under:-
"24. In the present case, it is undisputed that the suit was preferred in the year 1987. The issues in the suit were framed by the Court on 30/9/1995 and the first date of hearing after framing of issues was 29/11/1995. From the year 1995 to 1999, there was no progress in the suit. On 20/9/1999, the Civil Court in the absence of the plaintiff as well as his Advocate, dismissed the suit for non prosecution. From 20/9/1999 the original plaintiff did not do anything till he passed away on 9/6/2004. I am at a loss to fathom that not even once in six years the original plaintiff thought fit to inquire with his Advocate as regards the status of the civil suit and its progress even assuming that the original plaintiff and his family was not in India and had migrated to U.S.A. If the original plaintiff was so much keen to pursue the suit with seriousness then probably before leaving for U.S.A. he could Page 22 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined have even executed a power of attorney in favour of any person, who could have proceeded with the suit but even that was not done. The fact that till 9/6/2004 i.e. till the date the original plaintiff passed away, he did not even bother to inquire once with his Advocate about the progress and status of the suit, itself goes to show that he was not at all serious to go ahead with the suit. Not only this but even thereafter the respondents as legal heirs of the original plaintiff preferred an application almost after a period of ten months from the date of demise of the original plaintiff.
25. Under such circumstances, the Trial Court committed a serious error in condoning delay on the ground that the Advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a 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 litigan, 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. I regret to state that in the present case, learned Advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an Advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an Advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an Advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice would condone the delay. Affidavit of an Advocate may come on record in the rarest of rare circumstances and not as a matter of course. Let me assume for a moment that in the present case, concerned Advocate of the original plaintiff could not remain present on 20/9/1999 the day on which the Trial Court dismissed the suit for non prosecution and thereafter he was not able to keep Page 23 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once atleast with his Advocate as regards the status of the suit- This could have been done even if the original plaintiff and his family was in U.S.A. I do not blame the original plaintiff in going to U.S.A. but being a litigant in the Court of Law he is expected to keep a close watch on the proceedings as well as on the status of such proceedings. After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non prosecutio and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned. There is one more reason why I am very serious in commenting on the practice of Advocates filing affidavit. There is a general impression in the mind of the litigants that if a lawyer would file an affidavit saying that he was unable to attend the Court or because of his negligence the suit or appeal came to be dismissed then the Court would very willingly accept such explanation and condone the delay. This impression needs to be eradicated. Advocates at time forget that in the zeal to help the client by filing such affidavit they would land up in difficulty if a litigant would file proceedings for compensation on the ground of deficiency in service.
26. At this stage, I deem fit and proper to quote para 8 of the Supreme Court decision in case of Salil Dutta V/s. T. M. & M. C. Private Ltd. reported in (1993) 2 SCC 185.
["8.The Advocate is the agent of the party. His acts and statements, made within the limits of Authority given to him, are the acts and statements of the principal i.e. the party who engage him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the Advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its Advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq [AIR 1981 SC 1400] must be understood as an absolute proposition. As we have mentioned hereinabove, this was an Page 24 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not deposed of before taking up the suit for final hearing they felt piqued and refused to appear before the Court. May be, it was part of their delaying tactics as alleged by the plaintiff. Maybe not. But one thing is clear they chose to non-cooperate with the Court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame upon the Advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted."] 5.12 Keeping in mind the ratio laid down in the aforementioned decisions and applying it to the facts of the case on hand, I am of the opinion that this is a case of gross negligence on the part of the plaintiff while pursuing the legal remedy available to him under the law.
5.13 In view of the aforesaid ratio of the decisions of Hon'ble Supreme Court of India, I am of the opinion that the District Court has not committed any error of law, much less any gross/apparent error of law and/or any jurisdictional error, Page 25 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025 NEUTRAL CITATION C/SCA/14347/2024 ORDER DATED: 10/01/2025 undefined which requires any interference by this Court under Article 227 of the Constitution of India.
5.14 Thus, in view of the above said position of law and delay application lacks sufficient cause, such delay application requires to be rejected which is rightly rejected by the District Court vide its impugned order.
6. CONCLUSION:-
6.1 The upshot of the aforesaid observation, discussion, and reasons, I am of the opinion that the order impugned in the petition does not require any interference under Article 227 of the Constitution of India, as no sufficient cause is made out by the petitioner while preferring the appeal after about 9 years, 7 months and 338 days before the District Court after the passing of the judgment and decree by the trial Court.
Thus, there is no merit in the petition, and the same is dismissed in limine. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 26 of 26 Uploaded by MOHD MONIS(HC01900) on Tue Jan 28 2025 Downloaded on : Fri Jan 31 23:55:22 IST 2025