Gujarat High Court
Amrutlal Virabhai Shah Thro Poa vs Shah Hansraj Gosar on 23 July, 2025
NEUTRAL CITATION
C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11220 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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AMRUTLAL VIRABHAI SHAH THRO POA & ORS.
Versus
SHAH HANSRAJ GOSAR & ORS.
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Appearance:
MR ARPIT P PATEL(5497) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
MR MANRAJ A BAROT(6224) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MR DARSHIT H RAVAL(11887) for the Respondent(s) No. 2.2,2.3,2.4,2.5
RULE NOT RECD BACK for the Respondent(s) No. 2.1
UNSERVED EXPIRED (R) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Arpit P. Patel for the petitioners and learned Advocate Mr. Darshit H. Raval for respondent Nos. 2.2 to 2.5.
2. The present Writ Application is filed under Article 227 of the Page 1 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined Constitution of India, seeking the following reliefs:
"A) That the Hon'ble Court be pleased to admit and allow this application.
(B) That the Hon'ble Court be pleased to quash and set aside the impugned order (Annexure-F) dated 30.04.2013 of the Learned Principal Senior Civil Judge, Jamnagar passed in Misc. Civil Application no. 27 of 2012 and further be pleased to pass an order of allowing a delay condoning application for the restoration of the Misc.
Civil Application No. 32 of 2000 in Special Civil Suit No. 80 of 1987. (C) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances of the present case may kindly be granted."
3. The parties will be referred to as per their original positions before the Trial Court.
4. The short facts of the case appears to be that:
4.1. The petitioner herein is an original plaintiff of Special Civil Suit No.80 of 1987 instituted against the respondents herein, seeking declaration and injunction. The suit was reached at the stage of trial and due to non-availability of the plaintiff, it got dismissed for default on 7th February, 2000.
4.2. The plaintiff appears to have filed restoration application, being CMA No. 32 of 2000, under Order 9, Rule 9 of the Code Page 2 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined of Civil Procedure (hereinafter referred to as "CPC"). The reasons best known to the plaintiff, due to non-availability of plaintiff, again such restoration application came to be dismissed for default on 25th March 2003.
4.3. The plaintiff took about 9 years and 23 days in filing the restoration application in aforesaid restoration application.
So, the plaintiff appears to have filed the application being CMA No. 27 of 2012, seeking condondation of delay of more than 9 years in filing the restoration application, which is impugned in the matter.
4.4. As there was a huge delay of 9 years and 23 days in filing restoration application in the aforesaid restoration application, it was opposed by the defendants by filing their reply.
4.5. After hearing the parties at length, the Trial Court, vide its judgment and order dated 30th April 2013, rejected the aforesaid impugned delay application, by holding that neither sufficient cause has been made out by the plaintiff nor any reasons to condone such inordinate long delay in filing restoration application in restoration application. Thus, the Trial Court has found the plaintiff negligent and very casual in pursuing his legal remedy available to him under the law thereby, not exercised its discretion in favour of plaintiff. Page 3 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025
NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined 4.6. The plaintiff, having been aggrieved by the impugned order passed by the Trial Court, has preferred the present Writ Application.
5. SUBMISSION OF THE PETITIONER-PLAINTIFF:
5.1. Learned Advocate Mr. Patel would submit that the Trial Court has committed a serious error of law by not condoning the delay in filing the restoration application even not allowed delay application by imposing costs upon the plaintiff, thereby committed jurisdictional error which requires to be corrected by this Court.
5.2. Learned Advocate Mr. Patel would submit that the main reason of delay in filing the restoration application was the fact that the learned advocate engaged by plaintiff had not informed him about the dismissal of the restoration application which occurred in the year 2003, which the plaintiff came to know when he contacted another lawyer, albeit in the year 2012 and immediately thereafter, the plaintiff had filed impugned application. It is submitted that the plaintiff was all throughout given an impression by his Advocate concerned that his matter pending for consideration before the Trial Court i.e. earlier restoration application and in good faith, the plaintiff has not personally went to the court to check the status of case, which resulted Page 4 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined into delay in filing restoration application.
5.3. Learned Advocate Mr. Patel would further submit that the plaintiff is permanent resident of Kenya and not residing in Jamnagar, where the suit/restoration were instituted by him.
Although he came to India in the year 2006 and 2009, but in the year 2006, after completion of the surgery of his wife at Mumbai, he returned back to Kenya but never visited Jamnagar. As such when he visited Jamnagar in the year 2009, a lawyer concerned had advised him to challenge revenue proceedings, which has been done by him as per the legal advice. Nonetheless, at the relevant point of time, learned Advocate has not at all apprised him about the dismissal of restoration application; otherwise, there was no reason for the plaintiff to file restoration application after delay of 9 years & 23 days.
5.4. Learned Advocate Mr. Patel would submit that the plaintiff is aged about 80 years old, residing in Kenya and was dependent upon his lawyer, who, unfortunately, did not properly advised/informed him about the dismissal of the restoration application in the year 2003 itself, caused unintentional delay in filing restoration application in such restoration application.
5.5. Lastly, learned Advocate Mr. Patel would submit that if the Page 5 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined delay in filing the restoration application would not be condoned, the plaintiff would remediless inasmuch as the suit was dismissed for default at the stage of Order 9, Rule 9 of the CPC, thereby plaintiff would not be in a position to file a fresh suit. In light of the said fact, learned Advocate Mr. Patel would request this Court to exercise its supervisory jurisdiction under Article 227 of the Constitution of India by imposing any condition, including exemplary costs, but should condone the delay, thereby requested to allow the impugned application.
5.6. To buttress his argument, he would rely upon the decision of the Honourable Supreme Court of India in the case of Inder Singh V/s. State of Madhya Pradesh reported in 2025 (O) AIJEL-SC 74939 [2025-INSC-382].
5.7. So, making the above submissions, learned Advocate Mr. Patel would request this Court to allow this writ application.
6. SUBMISSION OF THE RESPONDENT NOS.2.2 TO 2.5- DEFENDANTS:
6.1. Per contra, learned Advocate Mr. Raval would submit that there was a gross negligence on the part of the plaintiff in pursuing his legal remedy, which caused delay of more than 9 years in filing restoration application in restoration application, which was correctly not condoned by the Trial Page 6 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined Court.
6.2. Learned Advocate, Mr. Raval, would further submit that as per the settled legal position of law, plaintiff cannot be allowed to shift entire burden and blame upon the lawyer engaged by him and as such, it was duty cast upon the plaintiff to inquire about and check the status of his legal proceedings, even though residing abroad and having failed to do so, any delay occurred in filing restoration application, such delay is unpardonable and cannot be condoned.
6.3. Learned Advocate Mr. Raval would further submit that all throughout the proceedings, as it has been observed in the impugned order that plaintiff was remained totally indolent and negligent in pursuing his suit, restoration application and so also after dismissal of restoration application, he took about more than 9 years to wake up from slumber by filing restoration application in such restoration application. It is submitted that conduct of the plaintiff would clearly suggest that there was a gross negligence, inordinate delay and inaction on the part of the plaintiff that resulted into such huge unexplained delay and in that view of the matter, it cannot be condoned.
6.4. Learned Advocate Mr. Raval would further submit that when the plaintiff came back to India for the first time in the year Page 7 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined 2006 and so also in the year 2009, he could have easily verified the status of his restoration application filed in the suit and having not done so and rather pursuing revenue proceedings in year 2009 itself suggests that the plaintiff was not interested in the suit proceedings which was instituted by him at the relevant point of time.
6.5. Learned Advocate Mr. Raval would further submit that as per the settled legal position of law, when there is a gross negligence, inordinate delay and callous approach on the part of the plaintiff, even if sufficient cause is made out, the Court should not condone such inordinate delay, even by imposing any condition including exemplary cost.
6.6. Lastly, learned Advocate Mr. Raval would submit that there is no error, much less any gross error and/or jurisdictional error, committed by the Trial Court while not exercising its discretion in favour of the plaintiff, having not condoned such huge delay in filing restoration application, thereby, this Court should not interfere with such well-reasoned order passed by the Trial Court while exercising its power under Article 227 of the Constitution of India.
6.7. Making the above submissions, learned Advocate Mr. Raval would request this Court to reject the present application.
7. No further and other submissions are made.Page 8 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025
NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined POINT FOR DETERMINATION:
8. The short question falls for consideration of this Court, as to whether impugned order of the Trial Court refusing to condone the delay of 9 years and 23 days in filing restoration application in restoration application by plaintiff is just, proper and in accordance with law or not?
ANALYSIS:
9. The facts which are narrated hereinabove are not in dispute.
The plaintiff instituted the suit in the year 1987, which got dismissed for default in the year 2000 on 07/02/2000 due to his non-availability. It appears that the plaintiff is residing abroad in Kenya and does not frequently visited to India. Nonetheless, a restoration application was timely filed at the given point of time in the year 2000 itself, but for reasons best known to the plaintiff, it was not properly attended to, which ultimately resulted into its dismissal i.e. dismissed for non-prosecution on dated 23/03/2003.
10. It further appears from the impugned application itself that the plaintiff came to India in the year 2006 but visited Mumbai city only as he had to attend to the surgery of his wife and according to plaintiff, he had not visited Jamnagar where the suit/restoration application were instituted before trial Court, Jamnagar but he returned back to Kenya. Page 9 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025
NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined Thereafter, he again visited India in the year 2009, where he visited Jamnagar and as per the advice of his lawyer, he pursued his revenue proceedings in relation to the suit property itself. But, at the same time, the plaintiff did not bother to check the status of his suit / restoration application albeit, reason assigned by the plaintiff in the impugned application is that his lawyer had informed him that such proceeding is still pending before the Civil Court.
11. The plaintiff has all throughout maintained one stand that due to non-information of dismissal of restoration application occurred in the year 2003 by his lawyer, he could not file restoration application within stipulated time. But when he contacted another lawyer in the year 2012, then he came to know about such dismissal. So, there was a delay of more than 9 years in filing another restoration application in main restoration application.
12. The explanation coming forth from side of the plaintiff is nothing but shifting the entire burden upon the shoulder of the lawyer, inasmuch as the plaintiff did not bother to check the status of suit proceedings/restoration proceedings instituted by him at the relevant point of time by any other means. When, a litigant is facing a situation like present one, where his suit is already dismissed for non-prosecution and Page 10 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined having so filed restoration application, it is expected from such litigant that he should be more vigilant and careful, thereby the proceeding which has been instituted by him cannot not entail dismissal by non-prosecution. The restoration application ought to have been pursued by the plaintiff rigorously and without any further default. When, such restoration application came to be dismissed for want of prosecution, it prima facie suggests, how casual litigant/plaintiff pursuing his legal remedy filed before the Civil Court, who are already overburdened. At the same time, opponent cannot be expected to keep alive his interest to defend such dead proceeding which suddenly surfaced after these much years as plaintiff wake from deep slumber.
13. It is true that the Court should give liberal construction to "sufficient cause" and to have a liberal approach while adjudicating any delay application. At the same time, when court finds that there is a gross negligence, inordinate delay and/or indolent and careless approach on the part of the litigant, Court should be very careful while exercising its positive discretion in favour of such litigant due to whom such inordinate delay occurred. In fact, in view of recent past decisions of Honourable Supreme Court of India, such unexplained, inordinate delay occurred due to sheer Page 11 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined negligence of applicant need not requires to be condoned.
14. It is also required to be noted here that no steps have been taken by the plaintiff against his erstwhile lawyer, to whom he has blamed, albeit put entire blame for not taking steps to file the restoration application and so also not informed him in time about dismissal of earlier restoration application. This conduct of plaintiff would also constitute the fact that plaintiff has simply shifted his burden on the shoulder of lawyer without anything to substantiate it, which this Court ordinarily experiencing in most of the cases whenever there is inordinate delay in filing appropriate application/ proceedings before the Court/Authority. This factor also would stand against plaintiff, thereby the Trial Court and so also this Court would not like to exercise its discretion in favour of plaintiff.
15. As such, issue germane in the present writ application is already answered in so many words by the Honourable Supreme Court of India in its various decisions. I would like to rely upon some of it, as follows:
15.1. It would apt to first rely upon the recent past decision of Honourable Supreme Court of India delivered on 08-01-2025 in a case of H. Guruswamy & Ors. V/s. A. Krishnaiah Since Deceased By Lrs. reported in Civil Appeal No. 317 of 2025 Page 12 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined reported as 2025 INSC 53, wherein held 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.
[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 Page 13 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined 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."
(emphasis supplied) 15.2. In the case of Rajneesh Kumar & Anr V/S Ved Prakash reported in 2024 (14) SCALE 406, wherein held as under:
"[10] It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers of negligence and carelessness in attending the proceedings before the court. Even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief.
[12] As regards the law of limitation, we may refer to the decision of this Court in Bharat Barrel & Drum MFG Go. v. The Employees State Insurance Corporation, 1971 2 SCC 860, wherein this Court held as under:-
"The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the Page 14 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined 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) 15.3. It is also apposite to refer and rely upon the decision 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 Page 15 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined Basawaraj and Anr. v. Special Land Acquisition Officer., (2013) 14 SCC 81). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649, and are reproduced as under:
"21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms "sufficient cause"
should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
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 Page 16 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined 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) 15.4. 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 held thus:-
"[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:Page 17 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025
NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."
(emphasis supplied) Page 18 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined 15.5. 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, 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) 15.6. In somewhat similar factual situation where the plaintiff was residing abroad and was not informed by his lawyer and thereby, the suit got dismissed for default, at the time of delay/restoration application, an affidavit was filed by lawyer to the effect that he has not informed of the factum of dismissal of suit to his client i.e. plaintiff of that suit. Even Page 19 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined though such fact, a Coordinate Bench of this Court in a case of Samsunisha Begaum W/O. Dr.Nasarullahkhan Dhaniani And Ors. Vs. Vishnukumar Ambelal Patel reported in 2012 (3) GLR 2565, authored by Hon'ble Mr. Justice J. B. Pardiwala (his Lordship then was) held thus:
"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 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. 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 Page 20 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined 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 a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once at least 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 cannot 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- prosecution 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."
(emphasis supplied) So, merely because plaintiff is residing overseas would not be a ground seeking exemption of limitation and cannot Page 21 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined be absolved from his responsibility to get verify status of his proceedings instituted by him before the Civil Court at regular interval.
16. The judgment cited by learned advocate Mr. Patel is distinguishable on facts; for instance, in Indra Singh (supra), the dispute involved between the State and a private party, with active participation and contest on merits from the outset, unlike the present case. The High Court in that case, having condoned the delay was challenged by private party before Apex Court. So, considering such background of facts, Apex Court has not interfered with the order of high court condoning the delay. As such facts on hand and cited case are not similar but quite distinguishable on all respect and especially in case on hand, trial Court has not used its discretion in favour of plaintiff by observing no sufficient cause made out by him Thus, examination of merit of the matter would stand on different footing which would well defined by several decisions of Hon'ble Apex Court. Few would referred herein below.
16.1. It is by now well settled legal position of law that in a case where any positive exercise of discretion by Court below then, appellate court should ordinarily would not interfere Page 22 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined with such discretion exercised by Court unless its arbitrary, perverse and or contrary to settled legal position of law. 16.2. It would apt to refer and rely upon following decisions of Hon'ble Supreme Court of India which has clarified such aspect of the matter.
16.3. In a case of N Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123, it has been held as under:-
"[9] It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court."
(emphasis supplied) 16.4. Likewise, in a case of Sheo Raj Singh(D) Tr.Lrs.. vs Union Of India reported in (2023) 10 SCC 531 held thus:- Page 23 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025
NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined "33. Be that as it may, it is important to bear in mind that we are not hearing an application for condonation of delay but sitting in appeal over a discretionary order of the High Court granting the prayer for condonation of delay. In the case of the former, whether to condone or not would be the only question whereas in the latter, whether there has been proper exercise of discretion in favour of grant of the prayer for condonation would be the question. Law is fairly well-
settled that "a court of appeal should not ordinarily interfere with the discretion exercised by the courts below". If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v. Tammanasa, 2003 10 SCC 390. which in turn relied on the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 2 SCC 593. where it has been held that "an appellate power interferes not when the order appealed is not right but only when it is clearly wrong".
41. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice- oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."
(emphasis supplied) Page 24 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined
17. The argument so canvassed by the learned Advocate Mr. Patel that if delay would not be condoned, the plaintiff would be remediless as he cannot file any fresh suit. Such argument cannot be appreciated in light of the fact that the plaintiff himself has to be blamed for this situation and due to his inaction for long time resulted into an inordinate delay. Once, having found him negligent in filing restoration application and having remained indolent for years in pursuing his legal remedy, the court cannot come to his rescue and help.
18. Finally, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court should refrain from interfering with the discretionary orders of the Appellate Court and there is limitation, thereby this court cannot substitute its own view and the view taken by court below unless palpably arbitrary, erroneous, perverse and passed contrary to settled legal position of law, which is not demonstrated here by defendants. [ See - Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16) ]
19. In view of the aforesaid and in fact, I am in complete agreement with reasons assigned by trial Court while rejecting impugned delay application.
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NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined
20. Before parting, this Court vide its order dated 15/07/2013, directed the petitioner/plaintiff to deposit Rs.50,000/- towards the costs of the respondents, which is stated to have been deposited by petitioner with the Registry of this Court.
21. Learned Advocate Mr. Raval appearing for respondent Nos.
2.2 to 2.5, under the instruction of his client would states that said respondents are not interested to receive such costs. In light of the said fact, the Registry is hereby directed to refund the sum of Rs.50,000/- with accrued interest thereon, if any, to the petitioner/plaintiff on proper verification through RTGS/NEFT/Any other digital mode of payment, if any, in the bank account of the petitioner/plaintiff maintained by him.
CONCLUSION
22. Thus, upshot of said discussion and reasons would lead to one conclusion that, there was gross negligence on the part of the plaintiff in filing the restoration application be lately, approximately after nine years and twenty-three days from date of dismissal of first restoration application. No sufficient cause as such, has been made out by plaintiff in the impugned application.
23. In view of the aforesaid facts and ratio of various decisions of Hon'ble Supreme Court/this Court so referred herein-above, I Page 26 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025 NEUTRAL CITATION C/SCA/11220/2013 JUDGMENT DATED: 23/07/2025 undefined am of the view that there is no error, much less any serious error of law and or a jurisdictional error of law committed by Trial Court while rejecting the impugned delay application.
24. In view of the foregoing reasons and conclusion, the order impugned passed by the trial Court rejecting the impugned delay condonation application is just and proper, and the writ petition deserves to be rejected and in fact, the same is hereby rejected. Rule discharged. No order as to costs. Registry to refund the amount of Rs. 50,000/ so deposited by petitioner with accrued interest if any to petitioner/plaintiff as aforesaid.
(MAULIK J. SHELAT, J) Nilesh Page 27 of 27 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:32:44 IST 2025