Gujarat High Court
Dineshbhai Mathurbhai Chauhan vs Lh Of Decd Jasumatiben Chhaganlal Patel on 18 June, 2025
NEUTRAL CITATION
C/CA/999/2025 JUDGMENT DATED: 18/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 999 of
2025
In F/CIVIL REVISION APPLICATION NO. 3499 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
==========================================================
Approved for Reporting Yes No
No
==========================================================
DINESHBHAI MATHURBHAI CHAUHAN
Versus
LH OF DECD JASUMATIBEN CHHAGANLAL PATEL & ORS.
==========================================================
Appearance:
R N JADAV(7688) for the Applicant(s) No. 1
UNSERVED EXPIRED (N) for the Respondent(s) No. 1.8
VIJAY H PATEL(7361) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6,1.7
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 18/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. With the consent of learned advocates for the respective parties, present matter is taken up for final hearing. The present application has been filed to condone the delay of 1731 days in filing the Civil Revision Application.
2. The brief facts arising in the present application are that by way of Civil Revision Application, the applicant intends to challenge the order, passed by the Principal Senior Civil Judge, Bhavnagar in Regular Civil Page 1 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025 NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined Suit No.05 of 2011 whereby the trial Court has allowed the suit filed by the respondent under the provisions of Section 6 of the Specific Relief Act ('the Act', for short). The said order was challenged by the applicant by preferring Regular Civil Appeal No.31 of 2020 and the same being not maintainable under the provisions of Section 6 of the Act was rejected and thereafter Special Civil Application No.1005 of 2025 was filed which has been withdrawn with the liberty to file appropriate proceedings. Therefore there is a delay in filing the Revision Application. Hence, it is stated that there is delay of 1731 days and, therefore, the said delay be condoned.
3.1 Learned advocate for the applicant has stated that after filing Civil Application for condonation of delay, the applicant had filed additional affidavit dated 21.03.2025 to explain the cause of delay in filing the Civil Revision Application. It is the case of the applicant that the suit under the provisions of Section 6 of the Act has been decreed, vide judgment and decree dated 01.02.2020 and thereafter as per the legal advice, the applicant had filed Regular Civil Appeal No.31 of 2020, which was dismissed on 20.07.2024, as the respondent had raised preliminary issue that the said appeal is not maintainable under the provisions of Section 6 (3) of the Act. It is the case of the applicant that it was bona fide mistake on the part of the applicant to file the appeal before appellate Court which lacked jurisdiction and, therefore, the period of appeal from 01.02.2020 to 20.07.2024 is required to be excluded as per Section 14 of the Limitation Act. It is also the case of the applicant that thereafter the applicant had filed Special Civil Application No.1005 of 2025 with following reliefs mentioned in para:9(b) Page 2 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025 NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined "Your Lordship may be pleased to issue writ of certiorari or any other writ, order or direction quashing and setting aside the order dated 09.01.2025 passed by the learned Principal Senior Civil Judge, Bhavnagar in Execution Petition No.297 of 2024 as well as the Order / Judgment dated 01.02.2020 passed by the learned Principal Senior Civil Judge, Bhavnagar in Special Civil Suit No.5 of 2011."
3.2 Therefore, the applicant had challenged the said order dated 01.02.2020 passed by Principal Senior Civil Judge, Bhavnagar in Special Civil Suit No.5 of 2011 by way of Special Civil Application No.1005 of 2025 and learned advocate for the applicant, in view of the fact that revision under section 115 of the CPC would lie, had requested this Court to permit the applicant not to press the said petition and the said petition was withdrawn with liberty to the applicant to file appropriate proceedings challenging the said order passed in Special Civil Suit No.5 of 2011 and the Execution Petition No.297 of 2024. Therefore, in view of the said facts it has been argued that the period consumed in filing of the appeal is required to be excluded while taking into consideration the limitation aspect in view of the fact that the applicant had filed appeal bona fidely in a Court having no jurisdiction.
3.3 Learned advocate for the applicant has relied on following decisions:
(i) Consolidated Engg. Enterprises vs. Principal Secy. Irrigation Deptt. , 2008 (0) AIJEL - SC 41120 : 2008 (7) SCC 169; and
(ii) H. Guruswamy vs. A. Krishnaiah Since Deceased By Lrs., 2025 (0) AIJEL - SC - 74567 : 2025 (0) INSC 53
4.1 Per contra, learned advocate for the respondent has argued that no sufficient cause has been stated in the application to condone the delay in Page 3 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025 NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined filing the present petition. Learned advocate for the respondent has relied on provision of Section 6 of the Specific Relief Act wherein it has been specifically stated that no appeal shall lie from any order or decree passed in any suit instituted under Section 6 of the Specific Relief Act. It has also been argued that the present petitioner is trying to rely on Section 14 of the Limitation Act, but the fact remains that only if the plaintiff is prosecuting with due diligence another civil proceedings, only then the period of limitation for the time during which plaintiff has been prosecuting under the civil proceedings have to be excluded and in the present case when section 6 itself is very clear that no appeal shall lie, it cannot be said that the petitioner was bona fidely prosecuting the proceedings in wrong forum and, therefore, it has been stated that application is required to be rejected as no sufficient cause has been stated in the application to condone the delay.
4.2 It has also been argued that the bona fide will have to be established by the petitioner for condoning the delay and there is no satisfactory explanation for delay of 1731 days in filing the present revision application and, therefore, present application is required to be rejected.
4.3 Learned advocate for the respondent has relied on the judgment of the Apex Court in the case of Neeraj Jhanji vs. Commissioner of Customs and Central Excise reported in (2015) 12 SCC 695.
5.1 Having heard learned advocates for the parties, the fact remains that application that has been filed is to condone the delay of 1731 days in filing the civil revision application. The petitioner has challenged the Page 4 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025 NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined order dated 01.02.2020 passed by the Principal Senior Civil Judge, Bhavnagar in Regular Civil Suit No.5 of 2011 which was filed under the provisions of Section 6 of the Specific Relief Act and though Section 6 clearly states that no appeal shall lie, an appeal was filed being Regular Civil Appeal No.31 of 2020 before the Appellate Court, Bhavnagar which was also dismissed on 20.07.2024 and the present petitioner has filed an application relying on the provisions of Section 14(2) of the Limitation Act on the ground that there was bona fide mistake of filing the appeal challenging the order passed by the Principal Senior Civil Judge, Bhavnagar in Regular Civil Suit No.5 of 2011 and, therefore, the delay is required to be condoned.
5.2 The fact also remains that on careful consideration and submissions and on perusal of material on record, the point at issue for consideration is whether the delay is to be condoned or not. The suit has been filed under Section 6 of the Specific Relief Act and the said suit has been decreed on 01.02.2020. Thereafter appeal was filed. The said appeal was also dismissed on 20.07.2024. There is delay of 1731 days in preferring the present Civil Revision Application and the only ground that has been taken is that there was bona fide mistake on the part of the petitioner to file an appeal. The fact remains that there is statutory bar of filing an appeal challenging the order passed under Section 6 of the Specific Relief Act which reads as under:
"6. Suit by person dispossessed of immovable property.-- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought--
(a)after the expiry of six months from the date of dispossession; or Page 5 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025 NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined
(b)against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
The filing of appeal by the petitioner before the appellate Court at Bhavnagar against the judgment in the suit cannot be considered as bona fide in view of Section 14 of the Limitation Act, which reads as under:
"14. Exclusion of time of proceeding bona fide in court without jurisdiction.--
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.Page 6 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025
NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined Explanation.--For the purposes of this section,-- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; 1. The words "on which the decree or order is founded" omitted by Act 46 of 1999, s. 33 (w.e.f. 1-7-2002).
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
Therefore, the fact remains that in computing the period of limitation for filing the present Civil Revision Application, the time during which the plaintiff has been prosecuting with the appeal has to be with due diligence and same has to be in good faith. But the fact remains that when there is statutory bar of an appeal, the petitioner cannot be considered to have acted bona fidely in a wrong forum. The filing of appeal challenging the order passed in a suit filed under Section 6 of the Specific Relief Act can be considered as bona fide explanation offered by the petitioner seeking condonation. The reasons provided for the condonation of delay in the application are not sufficient under Section 14 of the Limitation Act. The concept of liberal approach, justice oriented approach and substantial justice cannot be employed to frustrate the jettison substantial law of limitation and the rules of limitation are not meant to destroy the right of parties and are meant to see that parties do not resort to dilatory tactics but to seek their remedy promptly.
5.3 The judgment relied upon by learned advocate for the petitioner in case of Consolidated Engg. Enterprises vs. Principal Secy. Irrigation Deptt. (supra), more particularly paras:11 and 12 which reads as under:
Page 7 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined "11. However, merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award, one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of 1996.
12. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court.
The policy of the Section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or law or defect of procedure.
Page 8 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025 NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined
Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded."
However, the facts of the present case will not be applicable to the present case as in the present case there is statutory bar in filing an appeal challenging the order passed under Section 6 of the Specific Relief Act and present petitioner having challenged the said order passed in the suit by filing appeal, it cannot be said that present petitioner has been prosecuting with due diligence and, therefore, plaintiff cannot get the benefit of Section 14 of the Limitation Act.
5.4 The judgment that has been relied upon by learned advocate for the petitioner in the case of H. Guruswamy vs. A. Krishnaiah Since Deceased By Lrs. (supra) would also not applicable in the facts of the present case as in the said case, the Court has observed that 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.
5.5 Moreover, from the facts stated in the present petition, it can be clearly established that there was a gross negligence on the part of the petitioner to file present revision application. In view of the said fact, this Court finds that petitioner is negligent and there is inaction on the part of the petitioner thereby constituting long delay in filing the present Civil Revision Application without any adequate explanation thereof and, therefore, said application to condone the delay in filing the revision application after period of 1731 days is required to be rejected.
6. For the reasons recorded above, this Court does not find any merit Page 9 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025 NEUTRAL CITATION C/CA/999/2025 JUDGMENT DATED: 18/06/2025 undefined in the present application and, therefore, the present application requires to be dismissed and it is accordingly dismissed. Rule is discharged. No order as to costs.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 10 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Jun 19 2025 Downloaded on : Fri Jun 20 01:03:32 IST 2025