Gujarat High Court
Oravel Stays Ltd. (Earlier Known As ... vs Jayesh Ramdebhai Bokhiria on 7 July, 2025
NEUTRAL CITATION
C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3393 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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ORAVEL STAYS LTD. (EARLIER KNOWN AS ORAVEL STAYS PVT. LTD.)
Versus
JAYESH RAMDEBHAI BOKHIRIA
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Appearance:
MR JEET B KARIA(11991) for the Petitioner(s) No. 1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/07/2025
ORAL JUDGMENT
1. The present writ application is filed under Article 227 of the Constitution of India, seeking the following relief:-
"A. Quash and set aside: (i) the ex parte judgement and decree both dated 04.05.2022 in Regular Civil Suit No.49 of 2022 by the Court of learned Second Additional Senior Civil Judge, Porbandar (Annexure-B) and the order therein dated 20.04.2022 (Annexure- C),
(ii) order dated 03.05.2023 in Civil Misc. Application No.62 of 2022 (Annexure-D) by the Court of learned Second Additional Senior Civil Judge, Porbandar which dismissed the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside of the said ex parte decree dated 04.05.2022, and Page 1 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined
(iii) the judgement dated 30.10.2023 in Misc. Civil Appeal No.5 of 2023 by the Court of learned Principal District Judge, Porbandar (Annexure-E), and consequently remand the matter for the Regular Civil Suit No.49 of 2022 in the Court of learned Second Additional Senior Civil Judge, Porbandar to be conducted de novo in the presence of the Petitioner and other defendants;
In the alternative to prayer 6 A. above, grant prayer 6 B. below:
B. Quash and set aside: (i) the order dated 03.05.2023 in Civil Misc.Application No.62 of 2022 (Annexure-D) by the Court of learned Second Additional Senior Civil Judge, Porbandar dismissing application under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside of the said ex parte decree dated 04.05.2022, and
(ii) the judgement dated 30.10.2023 in Misc. Civil Appeal No.5 of 2023 by the Court of learned Principal District Judge, Porbandar (Annexure-E), and consequently the matter be remanded for fresh consideration of Civil Misc. Application No.62 of 2022 in the Court of learned Second Additional Senior Civil Judge, Porbandar including on the aspect of delay/condonation of delay as well as granting liberty to the Petitioner to file an application for condonation of delay therein;
C. Pending the admission and final hearing of the present Petition, stay the operation and execution of the ex parte Judgement and Decree dated 04.05.2022 in Regular Civil Suit No.49 of 2022 (Annexure-B) by the Court of learned Second Additional Senior Civil Judge, Porbandar;
D. Provide costs; and E. Pass such other and further orders which this Hon'ble Court deems fit in proper in the facts and circumstances of the case."
2. THE SHORT FACTS OF THE CASE 2.1. The petitioner herein is the original Defendant No. 1, whereas the respondent herein is the original plaintiff who filed Regular Civil Suit No. 49 of 2022 seeking recovery of Rs.17,36,099/- from the petitioner-Defendant No. 1 and other Page 2 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined defendants though joined in the suit, were not joined in the present writ application. For sake of convenience, herein after, parties to present application will be referred as per their original position in the suit.
2.2. The Trial Court appears to have decided the suit ex parte against the defendants, thereby passed judgment and decree in favor of the plaintiff, whereby directing the defendants to pay Rs.17,36,099/- with 7% interest from 26th June, 2020 till realization. Such judgment and decree came to be passed by the Trial Court on the 4th of May 2022. 2.3. The Defendant No. 1 appears to have filed an application, being Civil Miscellaneous Application No. 62 of 2022 under Order IX Rule 13 of the Civil Procedure Code, 1908 (hereinafter referred to as the "CPC"), after about four months from the passing of such decree, albeit without filing any separate application for seeking condonation of delay in filing such application. So, the plaintiff appears to have filed an impugned application below Exhibit 8 in the restoration application - Civil Miscellaneous Application No. 62 of 2022, Page 3 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined whereby contended that in the absence of a separate delay application being not filed in the restoration application, such restoration application requires to be rejected as having filed after prescribed period of Limitation Act, 1963. The plaintiff has placed reliance upon Article 123 of the Limitation Act in support of his contention so raised in the impugned application.
2.4. Per contra, Defendant No. 1 submitted before the Trial Court that as per Article 123 of the Limitation Act, from the date of knowledge, the restoration application was filed in time, and as such, there was no delay in filing the restoration application, and otherwise also, sufficient cause was made out for any delay that occurred in filing the restoration application. 2.5. After hearing the parties, the Trial Court, vide its order dated 3rd May 2023, allowed the application of the plaintiff filed below Exhibit 8 in Civil Miscellaneous Application No. 62 of 2022 and, consequently, rejected the restoration application solely on the ground that as no separate delay application was filed by Defendant No. 1 in the Page 4 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined restoration application, such restoration application requires to be rejected.
2.6. The Defendant No. 1 appears to have challenged the aforesaid order passed by the Trial Court before the Appellate Court by way of filing Miscellaneous Civil Appeal No. 5 of 2023, which also came to be dismissed by the Appellate Court vide its judgement/order dated 30th October, 2023.
3. Being aggrieved and dissatisfied with both these orders passed by the Trial Court as well as the Appellate Court, Defendant No. 1 has preferred the present application.
4. SUBMISSION OF THE PETITIONER-DEFENDANT NO. 1 4.1. Learned Advocate Mr. A.S.Vakil, with learned Advocate Mr. Jeet B. Kariya, would submit that the orders impugned in the present application are bad in law and, inasmuch as they were not passed in accordance with law, requires to be quashed and set aside by this Court while exercising its power under Article 227 of the Constitution of India.
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NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined 4.2. Learned Advocate Mr. Vakil would submit that as per the settled legal position of law, while filing an application under Order IX Rule 13 of the CPC, Defendant No. 1 was not required to file a separate delay application, especially when it had already explained the delay, if any, in filing such an application under Order IX Rule 13 of the CPC. 4.3. Learned Advocate Mr. Vakil would further submit that due to an incorrect address being mentioned in the pre-suit notice as well as in the suit, as regards Defendant No. 1, no notice came to be received by Defendant No. 1, which resulted into passing of the ex parte judgment and decree against it. 4.4. It is submitted that when it came to his knowledge about passing of such judgment and decree against Defendant No. 1, immediately, within 30 days from such knowledge, Defendant No. 1 had filed an application under Order IX Rule 13 of the CPC for setting aside such ex parte judgment/decree, and as such, there was no delay in filing such application. It is submitted that courts below have not properly appreciated Page 6 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined Article 123 of Limitation Act, in its true spirit thereby, resulted into miscarriage of justice.
4.5. Learned Advocate Mr. Vakil would further submit that assuming without admitting, that there was a delay of about four months in filing the application under Order IX Rule 13 of the CPC by Defendant No. 1, the said delay was properly explained in the application itself, which ought to have been considered by the Trial Court while adjudicating Civil Miscellaneous Application No. 62 of 2022, and by not doing so, it committed a jurisdictional error while allowing the impugned application filed below Exhibit 8 by the plaintiff in such application.
4.6. Learned Advocate Mr. Vakil would further submit that as per the settled legal position of law, "sufficient cause"
which is to be shown while filing an application under Order IX Rule 13 of CPC or, as the case may be, for the delay in filing such an application, should be construed liberally, and a hyper-technical approach is required to be avoided by the Trial Court while adjudicating such an application.Page 7 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025
NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined 4.7. Learned Advocate Mr. Vakil would further submit that to advance substantial justice between the parties, the Trial Court should not have rejected application under Order IX Rule 13 of the CPC merely because it was not accompanied by a separate delay application, and as such, the impugned application filed by the plaintiff is misconceived in law and ought to have been rejected.
4.8. To buttress his arguments, Learned Advocate Mr. Vakil would rely upon the decision of the Hon'ble Supreme Court of India in the case of Sesh Nath Singh and Anr. vs. Baidyabati Sheoraphuli Co. Operative Bank Ltd. and Anr. reported in (2021) 9 SCC 717.
5. SUBMISSION OF THE RESPONDENT-PLAINTIFF
5.1. Per Contra, Learned Advocate Mr. Digant Kakkad would vehemently submit that this Court should not entertain the present application at the instance of a defaulting defendant No.1 who chosen not to appear and contest the suit and is facing a money decree. It is submitted that this Court Page 8 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined should not exercise its power under Article 227 of the Constitution of India in favour of the petitioner - defendant No.1.
5.2. Learned Advocate Mr. Kakkad would further submit that the impugned application was correctly filed by the plaintiff, inasmuch as there was a delay in filing the application under Order IX Rule 13 of CPC filed by Defendant No. 1, who was required to file a separate delay application, which is a mandatory requirement in law, and having not done so, the Trial Court and, as the case may be, the Appellate Court have not committed any serious error of law while rejecting such application, thereby allowed the impugned application of the plaintiff.
5.3. Learned Advocate Mr. Kakkad would further submit that there is no provision under the CPC and/or the Limitation Act which would indicate that there is no requirement to file a separate delay application. It is submitted that delay in filing any application requires to be explained by filing a separate delay application, and if the Court concerned is not satisfied Page 9 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined with such explanation of delay, the Trial Court may reject such delay application, and thereafter the impugned application would not survive.
5.4. Learned Advocate Mr. Kakkad would further submit that the judgment of the Hon'ble Supreme Court, relied upon by the petitioner, would not be applicable to the facts of the present case, inasmuch as when the plaintiff specifically pointed out before the Trial Court in Civil Miscellaneous Application No. 62 of 2022 that there was a delay of about four months in filing such application, it was incumbent upon Defendant No. 1 to file a separate delay application, and having chosen not to file it, no error can be found with the orders of the Trial Court as well as the Appellate Court, which have rejected Civil Miscellaneous Application No. 62 of 2022. 5.5. To buttress his arguments, Learned Advocate Mr. Kakkad would rely upon the judgment in the case of Ashokbhai Ukabhai Molaviya versus Chandraknat Mancharam Patel reported in 2023 (0) AIJEL-HC 247568. Page 10 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025
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6. No other and further submissions are made.
7. Heard learned advocate Mr.A.S.Vakil with learned advocate Mr.Jeet B. Kariya for the petitioner - defendant no.1 and learned advocate Mr.Digant Kakkad for the respondent - plaintiff at length.
8. POINT FOR DETERMINATION 8.1. Whether in the facts and circumstance of the case, the Trial Court and, as the case may be, the Appellate Court committed any gross error of law and/or a jurisdictional error while rejecting the impugned application being Civil Miscellaneous Application No. 62 of 2022, filed by Defendant No. 1 under Order IX Rule 13 of the CPC on sole ground that it was not accompanied by any separate delay application? 8.2. Is there any mandatory requirement under law to file a separate delay application in an application filed under Order IX Rule 13 and/or Order IX Rule 9 and/or Order IX Rule 4 of the CPC, having been filed after the period of limitation prescribed under Limitation Act, 1963? Page 11 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025
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9. ANALYSIS
10. At the outset, it would require to be observed that as such, the issue germane in the present writ application is no longer remain res integra, being squarely covered by the following two decisions of the Hon'ble Supreme Court of India. 10.1. I would like to first place reliance upon a decision of the Hon'ble Supreme Court delivered as far as back in the year, 2010, in the case of Bhagmal and Others vs. Kunwar Lal and others, reported in (2010) 12 SCC 159, wherein it was held thus:-
"12. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellant-defendants had clearly pleaded that they did not earlier come to the court on account of the fact that they did not know about the order passed by the court proceeding ex parte and also the ex parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellant-defendants for making Order 9 Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant-defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the Page 12 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined hyper technical view that no separate application was filed under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice................ "
(emphasis supplied) 10.2. Even recently, on 20th December 2024, the Hon'ble Supreme Court again reiterated the aforesaid principle, in case of Dwarika Prasad (D), Thr. Lrs. vs. Prithviraj Singh reported in 2024 SCC OnLine SC 3828, arising out of Special Leave Petition (C) No. 11259 of 2022, wherein paras 9, 11, and 12, held thus:-
"9. We have heard learned counsel for the appellant and perused the record. We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The Trial Court had rightly allowed the restoration application filed by the Appellant under Order IX Rule 13 of CPC. It is well settled that Courts should not shut out cases on mere technicalities but rather afford opportunity to both sides and thrash out the matter on merits. Further, we cannot let the party suffer due to negligent or fault committed by their counsel. This principle has been enunciated by this court in the case of Rafiq v. Munshilal1, quoted as follows:
"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having Page 13 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order....."
11. The Appellant has relied upon the following judgments in support of his submissions. In Bhagmal v. Kunwar Lal this Court held as follows;
"12. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellant-defendants had clearly pleaded that they did not earlier come to the court on account of the fact that they did not know about the order passed by the court proceeding ex parte and also the ex parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellant-defendants for making Order 9 Rule 13 application at the time when it was actually made. Page 14 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025
NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined This was also a valid explanation of the delay. The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant-defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hypertechnical view that no separate application was filed under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice."
12. From the above cases, it is clear that there was no need to file a separate application for condonation of delay in the present case as well. The High Court has erred in taking a hyper technical view and concluding that there was violation of mandatory provision of law. Endorsing such a view would effectively mean ignoring the purpose of judicial procedure. The procedure cannot stand in the way of achieving just and fair outcome. In the present case, the Appellant acted bona fide and diligently. His conduct does not violate any rule of law."
(emphasis supplied) 10.3. Thus, in view of the aforesaid authoritative pronouncements of the Hon'ble Supreme Court of India, there should not be any cavil on the issue that whenever an application is filed by plaintiff/defendant under Order IX Rule 4 of the CPC and/or under Order IX Rule 9 and/or Order IX Rule 13 of the CPC, as the case may be, before the Trial Court, no separate delay application needs to be filed in a case Page 15 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined where such application is filed after the period of limitation as prescribed under the Limitation Act, 1963 i.e. Article 122 and or Article 123.
11. Now, adverting to the facts of the present case, The Trial Court has completely lost sight of the aforesaid position of law when it accepted the impugned application filed below Exhibit 8 by the plaintiff, thereby, it has accepted the plea of the plaintiff that as Defendant No. 1 had filed the restoration application beyond the period of 30 days from the passing of the decree and there was a delay of about four months in filing such application, and having not filed any separate delay application, such application filed under Order IX Rule 13 of the CPC requires to be rejected.
12. The Appellate Court, though it discussed all the facts and circumstances of the matter and also placed reliance upon the provisions of law, i.e., Order IX Rule 13 of the CPC and Article 123 of the Limitation Act, and also the fact that Section 5 of the Limitation Act shall be applicable to applications made under Order IX Rule 13 of CPC as per the Gujarat Page 16 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined Amendment, as referred in its impugned order, despite that, rejected the appeal of Defendant No. 1.
13. According to my view, the Trial Court as well as the Appellate Court have both committed a serious error of law and also jurisdictional error by allowing the impugned application filed below Exhibit 8 by the plaintiff and dismissing Miscellaneous Civil Appeal No. 5 of 2023 filed by Defendant No. 1, respectively, and consequently, rejecting the application filed by Defendant No. 1 under Order IX Rule 13 of the CPC on the hyper-technical ground that it was not accompanied by a separate delay application. As such, the issue involved in the matter being covered by the aforesaid two direct decisions, the impugned orders passed by the Trial Court as well as the Appellate Court require to be quashed and set aside.
14. Nonetheless, learned advocate Mr. Kakkad has raised several grounds/submissions in support of his arguments and also relied upon the decision of Coordinate Bench of this Court, which, after considering the decision of the Hon'ble Supreme Court in the case of Sesh Nath Singh (supra), held Page 17 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined that in the absence of a separate delay application and in not seeking condonation of delay in filing such an application under Order IX Rule 4 of the CPC, no error can be found in the order passed by the Trial Court while rejecting such application on the ground of not filing a separate delay application as application was filed beyond the period of limitation. So, in view of aforesaid, I have to deal with this submission and to examine as to whether the decision of the Coordinate Bench of this Court passed in the case of Ashokbhai (supra) can be said to be the correct law or not.
15. I have minutely gone through the decision of the Coordinate Bench of this Court in the case of Ashokbhai (supra), wherein the aforesaid decisions of the Supreme Court in the case of Bhagmal (supra) was not brought to its notice, as it does not appear that it has been considered/noticed.
16. Be that as it may, the judgment on which reliance was placed by the Coordinate Bench of this Court while taking the aforesaid view is a case of Ragho Singh vs. Mohan Singh and others reported in (2001) 9 SCC 717, and so also another Page 18 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined decision of Coordinate Bench of this Court in the case of Kalpeshbhai Natwarlal Patel vs. State of Gujarat and others reported in 2009 (3) GLH 372.
16.1. It appears that in a case of Ragho Singh (Supra), an appeal was filed before the Additional Collector with 10-day delay, wherein no separate delay application was filed, and in that background of facts, the Hon'ble Supreme Court did not disturb the order passed by the High Court, which had set aside the order passed by the Board of Revenue, which upheld the order of Additional Collector entertaining the appeal without there being an application seeking condonation of delay in filing the appeal as according to High Court, such recourse is not permissible without filing separate delay application. The facts and provision of law in said case was complete different than case on hand.
16.2. Likewise, in the Kalpeshbhai (supra) also, it is not arising out of any proceeding like the present one but an observation made by this Court, in the aforesaid decision in the context of peculiar facts of that case, which arose out of Page 19 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined tenancy proceedings, unlike civil proceeding in the case on hand. Thus, the ratio of decision in the case of Kalpesh (supra) would not be applicable at all in a case like the present one. 16.3. As such, when a special appeal is filed before competent authority, like Collector, under any Special Act, as per the provisions of such Special Act, which may requires to file the separate delay application seeking condonation of delay, and if not filed, would stand on a completely different footing than an application filed under Order IX Rule 4 and/or Order IX Rule 9 and/or Order IX Rule 13 of CPC, as in the aforesaid provisions of the CPC, "sufficient cause" is the paramount consideration to be considered while adjudicating such application, which is also a ground to be considered by the court while condoning the delay.
16.4. Thus, whenever an application is filed under Order IX Rule 4 and/or Order IX Rule 9 and/or Order IX Rule 13 of CPC and/or an application is filed under any other order of CPC, having similar provision, it cannot be equated with an Page 20 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined appeal proceeding to be filed either before a civil court and/or before any special authority.
16.5. It would not be out of place to mention here that if there is any regular civil appeal would have been filed under Order XLI by any party and there is a delay in filing such appeal, a separate delay application requires to be filed as per Rule 3A of Order XLI of CPC, which is a mandatory requirement under law and in that case, in absence of separate delay application, the appeal would not be maintainable. 16.6. Thus, according to my view, the decision of the Supreme Court in the case of Ragho Singh (supra) and co- ordinate bench of this Court in the case of Kalpesh (supra) would not ipso facto apply in cases wherein an application is filed under Order IX Rule 4, Order IX Rule 9, or Order IX Rule 13 of the CPC, as the case may be.
17. So far as the decision of the Hon'ble Supreme Court in the case of Sesh Nath Singh (supra) is concerned, wherein it was held thus:-
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NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined "61. Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the court or tribunal to weigh the sufficiency of the cause for the inability of the appellant applicant to approach the court/tribunal within the time prescribed by limitation, there is no bar to exercise by the court/tribunal of its discretion to condone delay, in the absence of a formal application.
62. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the court is satisfied that the appellant applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application."
(emphasis supplied) 17.1. The plain reading of the aforesaid decision of the Hon'ble Supreme Court and its ratio binding to this Court would indicate that in a case where the Court insists on the filing of a separate delay application by the applicant while Page 22 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined adjudicating such type of applications, having been filed under Order IX Rule 13 of the CPC, etc., in that eventuality, the applicant is required to file a separate delay application; otherwise not.
17.2. It is very clearly observed that while filing such kind of application, wherein there was delay in filing such application, no separate delay application as such is required to be filed.
17.3. According to my view, the ratio of the decision of the Supreme Court in the case of Sesh Nath Singh (supra) would be that there is no requirement under law to file a separate delay application when an applicant files an application in the proceeding like under Order IX Rule 4 and/or Order IX Rule 9 and/or Order IX Rule 13 of the CPC, as the case may be, unless insisted upon by the Court.
18. Thus, according to my view, in light of the authoritative pronouncement of the Hon'ble Supreme Court of India in the cases of Bhagmal (Supra), Dwarika Prasad (supra), and Sesh Page 23 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined Nath Singh (supra), the view taken by the Coordinate Bench of this Court in the case of Ashokbhai (Supra) is not the correct position of law, which, according to my view, is per incuriam, having not been found to be in consonance with the law laid down by the Supreme Court in the above-referred decisions.
19. Having so discussed position of law and facts herein above which are very eloquent, none of submissions made by learned advocate Mr. Kakkad impressed this Court to endorse the view of Trial Court confirmed by Appellate Court, but would like to accept submissions of learned advocate Mr. Vakil.
20. CONCLUSION 20.1. According to my view, as per the settled legal position of law as discussed hereinabove, there is no requirement under law to file a separate delay application in an application being filed either under Order IX Rule 4 and/or Order IX Rule 9 and/or Order IX Rule 13 of the CPC, even though filed after period of limitation.
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NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined 20.2. Nonetheless, the Court is required to decide whether any sufficient cause has been made out from a bare reading of such application which prevented the applicant from filing such application beyond prescribed period of limitation, apart from the sufficient cause, which prevented the applicant from not appearing when the suit was called on for hearing. 20.3. The upshot of the aforesaid discussion, observations, and reasons, I am of the view that the Trial Court as well as the Appellate Court have committed a gross error of law and, inasmuch as a jurisdictional error while allowing the impugned application filed below Exhibit 8 by the plaintiff in Civil Miscellaneous Application No. 62 of 2022. 20.4. The Trial Court egregiously erred in rejecting Civil Miscellaneous Application No. 62 of 2022 filed by Defendant No. 1 which erroneously confirmed by Appellate Court when dismissed Misc. Civil Appeal No.5 of 2023. Page 25 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025
NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined 20.5. Consequently, the impugned orders are hereby quashed and set aside and the matter is remanded back to the Trial Court.
20.6. Having so held that no separate delay application needs to be filed along with Civil Miscellaneous Application No. 62 of 2022, the Civil Miscellaneous Application No. 62 of 2022 is restored back on its original file of Trial Court. 20.7. The Trial Court is hereby directed to hear and decide Civil Miscellaneous Application No. 62 of 2022 on its own merits.
20.8. If the Trial Court is of the opinion that there was a delay in filing Civil Miscellaneous Application No. 62 of 2022, then, the aspect of sufficient cause being made out by the applicant-Defendant No. 1 while filing Civil Miscellaneous Application No. 62 of 2022 after the period of limitation as prescribed under Article 123 of the Limitation Act, be examined along with the sufficient cause made out by the Page 26 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025 NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined defendant No.1 having not appeared when the suit was called on for hearing.
20.9. It is also open for the Trial Court to direct the defendant no.1 - applicant to file an appropriate separate delay application in case of necessity, which can be done so in view of the ratio of Sesh Nath Singh (supra). 20.10. The parties are at liberty to file their appropriate written response/submissions in support of their respective defences before the Trial Court while pursuing Civil Miscellaneous Application No. 62 of 2022. 20.11. The Trial Court is hereby directed to decide Civil Miscellaneous Application No. 62 of 2022 in accordance with the law as early as possible, preferably within a period of two months from the date of receipt of a copy of this order, albeit after giving an opportunity of hearing to all the parties concerned and so also without being influenced by any of the observations made either by Trial Court or Appellate Court while passing impugned orders and/or this Court hereinabove. Page 27 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025
NEUTRAL CITATION C/SCA/3393/2024 JUDGMENT DATED: 07/07/2025 undefined 20.12. Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(MAULIK J.SHELAT,J) MOHD MONIS Page 28 of 28 Uploaded by MOHD MONIS(HC01900) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:37:40 IST 2025