Gujarat High Court
Bharatbhai Gopalji Nayak vs Geetaben D/O Gopalji Nayak W/O ... on 22 July, 2025
NEUTRAL CITATION
C/CA/5280/2024 ORDER DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 5280 of
2024
In F/FIRST APPEAL NO. 25574 of 2024
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BHARATBHAI GOPALJI NAYAK & ANR.
Versus
GEETABEN D/O GOPALJI NAYAK W/O KIRITBHAI AMBELAL DESAI
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Appearance:
MR. SURAJ A SHUKLA(7185) for the Applicant(s) No. 1,2
MR BOMI H SETHNA(5864) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/07/2025
ORAL ORDER
1. This application is filed under Section 5 of the Limitation Act, seeking condonation of delay of 423 days caused in preferring the captioned appeal.
2. Heard learned advocate Mr. Suraj A. Shukla for the applicants and learned advocate Mr. Bomi H. Sethna for the respondent.
3. Learned advocate for the applicants has submitted that the applicants herein filed a Summary Suit No.23 of 2017 before learned 11th Additional Senior Civil Judge, Surat for a recovery of Rs.50 lakhs with interest. The opponent herein who is Page 1 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined original-defendant in the aforesaid summary suit filed an application under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 for rejection of plaint. The application was contested by the applicants. Learned trial Court by invoking the provisions of Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 rejected the plaint vide order dated 06.04.2023. It is further submitted that applicants herein were not informed by concerned advocate regarding rejection of the plaint and therefore, applicants were not aware about the order of rejection of plaint. On inquiry, in the month of January-2024, applicants came to know about the order being passed on 06.04.2023. Thereafter, application for certified copy came to be filed on 11.01.2024 and the certified copy of the impugned judgment and decree was received on 12.01.2024. The impugned judgment and decree came to be challenged by way of a Civil Revision Application No.1854 of 2024 before this Court. As the applicants were litigating under a bonafide mistake, the aforesaid revision came to be withdrawn by applicants on Page 2 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined 22.02.2024 and thereafter, First Appeal came to be filed on 31.08.2024. Learned advocate for the applicants has relied upon additional affidavit dated 03.02.2025 as well as medical papers annexed with the additional affidavit. It is contended that on 19.08.2023, applicant was diagnosed with COPD (Chronic Obstructive Pulmonary Disease) and thereafter, applicant was hospitalized for treatment on 27.10.2023 and were discharged on 29.10.2023. The prescription issued by the Hospital also indicates that the applicant was under medication till 03.11.2023. It is further contended that as applicant was not keeping good health, challenge against the judgment and decree could not be raised within the prescribed period of limitation. Learned advocate for the applicants has further relied upon an averment made in the additional affidavit that the applicants had to arrange necessary Court Fees and other legal fees and therefore, delay has occasioned.
3.1. It is further contended that explanation which has been Page 3 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined pleaded by the applicants is sufficient cause and this Court may adopt a lenient view and condone delay. It is further contended by learned advocate for the applicants that the suit is filed for the recovery of the financial help which was advanced to the original defendant who is a near relative of the applicants. It is also brought to the notice of this Court that the original defendant has also filed a Civil Suit prior to the suit filed by the present applicants for a relief of declaration, partition and cancellation of registered sale deed. It is further contended that learned trial Court has wrongly held as there is no written contract, the plaint was rejected. If an opportunity is given to the applicants, applicants would be able to establish that learned trial Court has committed an error by invoking the provisions of Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908. 3.2. In support of his contentions, learned advocate for the applicants has placed reliance upon the decision in the case of State (NCT of Delhi) versus Ahmed Jaan reported in (2008) 14 SCC 582 and in the case of Collector, Land Acquisition, Page 4 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined Anantnag and Another reported in (1987) SCC 107. It is further contended that in the aforesaid decision, in paragraph No.10, the Hon'ble Apex has referred the decision in the case of O.P. Kathpalia V. Lakhmir Singh reported in (1984) 4 SCC 66. The relevant portion of the said paragraph is reproduced as under:-
"12. In O. P. Kathpalia v. Lakhmir Singh9, a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji10 a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression 'every day's delay must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including Page 5 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the State is the applicant. The delay was accordingly condoned.
15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."
3.3. No other submissions are made by learned advocate for the applicants.
4. Per contra, learned advocate for the respondent has relied upon the affidavit-in-reply and contended that the plaint of the Page 6 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined applicants was rejected on 06.04.2023 by invoking only provisions of Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908. It is further contended that the order dated 06.04.2023 was assailed by applicants by preferring a Civil Revision Application No.1854 of 2024 which came to be dismissed for non-removal of office objections by learned Additional Register (Judicial) on 18.01.2024. Statement which has been made by applicants in the application as well as in the additional affidavit is wrong that the revision came to be withdrawn on 22.02.2024. It is further contended that the medical papers which are placed on record indicate that applicant was admitted in the Hospital only from 27.10.2023 till 29.10.2023. The period between 18.01.2024 and 31.08.2024 has not been explained in the application. In absence of any explanation stating a cause for not filing the appeal within the stipulated period of limitation, Court may adopt a lenient view and the application deserves to be rejected.
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4.1. In support of his submissions, learned advocate for the respondent has placed reliance on the following decisions.
(i) State of Madhya Pradesh versus Ramkumar Choudhary reported in 2024 INSC 932.
(ii) Rajneesh Kumar & Anr. Versus Ved Prakash reported in 2024 INSC 891.
(iii) Pathapati Subba Reddy (Died) by L.Rs. & Ors. v. The Special Deputy Collector (LA) reported in [2024] 4 S.C.R. 241.
4.2. It is further contended that the explanation has to be affirmed from the date of expiry of the period of limitation and there has to be an existence of sufficient cause for condoning delay. In absence of sufficient and adequate explanation, delay cannot be condoned even if applicants have a good case on merits.
4.3. No other submissions are made by learned advocate for the respondent.
5. I have heard learned advocates for the parties and perused the application, additional affidavit and affidavit-in-reply filed by opponent. The challenge by applicants herein is against the Page 8 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined judgment and decree passed by learned 11 th Additional Senior Civil Judge, Surat, whereby the plaint of applicants came to be rejected on 06.04.2023. Applicants have canvassed three reasons for the delay; firstly, applicants are not aware about the judgment and decree passed as they were not informed by their advocate, secondly, the medical ground of applicant and thirdly the short of finance. As per the submission of learned advocate for the applicants, applicant was diagnosed with COPD (Chronic Obstructive Pulmonary Disease) and was under
medication from 19.08.2023 and he was admitted in the Hospital on 27.10.2023 and discharged on 29.10.2023.
6. The law is settled that whenever Court has to consider an application for condonation of delay, applicants must establish sufficient cause which prevented them from challenging the impugned order. Though applicants are not expected to explain each days' delay but it is for the applicants to explain the cause for not challenging the impugned order within prescribed period Page 9 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined of limitation. Against the impugned order, applicants filed Civil Revision Application No.1854 of 2024 which came to be withdrawn on 22.02.2024.
7. If the application is perused, the application is silent with regard to explanation for not filing the appeal from 22.02.2024 till 31.08.2024. What was expected from applicants is to explain the gap between 22.02.2024 to 31.08.24. Even for adopting a lenient and justice oriented approach, applicants have to state and aver the situation or reason for not preferring the appeal between 22.02.2024 and 31.08.2024. In the additional affidavit, applicants have not explained the gap between 22.02.2024 and 31.08.2024. What has been stated in the additional affidavit is the fact of hospitalization between 27.10.2023 and 29.10.2023 and a financial constraint. Even in additional affidavit, the period of hospitalization is only two days. No convincing explanation has been made out by the applicants.
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8. In catena of decisions, it has been laid down by the Hon'ble Apex Court that the length of delay is not always a criteria for judging a sufficient cause but what is to be considered is the explanation for inaction in not challenging the judgment.
9. In the case of State of Madhya Pradesh (supra), while addressing an issue of delay of 5 years 10 months and 16 days, the Apex Court in paragraph No.7 has observed as under:-
"7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1 st day and the 90th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired it was not possible to ile the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. (See: Ajit Singh Thakur Singh and Another v. State of Gujarat, AIR 1981 SC
733)."Page 11 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025
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10. The Apex Court while considering the question of condonation of delay has observed that a party seeking condonation has to explain why it was unable to institute proceedings within the prescribed period of limitation. The explanation has to be advanced for the period between the first day of the starting point of limitation and till 90 days of the period of limitation.
11. In the present case, applicants have assigned the reasons of illness from 19.08.2023 till the filing of the revision application but have not explained the source of knowledge about the judgment and decree passed against them.
12. While discussing the explanation, in the cases where advocates are blamed for not informing the aggrieved litigant, Hon'ble Apex Court in the case of Rajneesh Kumar & Anr (supra), has observed in paragraph No.10, which is reproduced as under:-
"10. It appears that the entire blame has been thrown on the head of Page 12 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined 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."
13. In the case of Pathapati Subba Reddy (Died) by L.Rs. & Ors.(supra), the Apex Court reiterated the law laid down in the cases of consideration of an application for condonation of delay. In Clause Nos.(vii) and (viii) of the Paragraph No.26 of the said decision, the Hon'ble Apex Court has observed as under;
"26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(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 17 condoning the delay for the reason that the conditions have been imposed, tantamount to disregarding the statutory provision."
14. The length of delay is definitely a relevant factor which Page 13 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined the Court must take into consideration while considering whether delay should be condoned or not. One of the considerations is to see the approach of the applicants in explaining the delay. In the present case, as discussed above, not a single explanation is forthcoming in the application as well as in the additional affidavit as to when did applicants come to know the judgment and decree passed in their suit. The shortage of funds is not a ground, whereby delay can be condoned. For the litigants who are having insufficient funds to pay court fees, law has taken care of such litigants and a litigant who is not having sufficient means to pay Court fees, can resort the provision of Order 33 of the Code of Civil Procedure, 1908 which contemplates that suits may be instituted by indigent person.
15. As observed by the Apex Court in the case of Rajneesh Kumar & Anr (supra), throwing a burden on the shoulder of the advocate who was appearing for applicants in the trial Court was not considered to be a sufficient cause. Applicants, before the Page 14 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025 NEUTRAL CITATION C/CA/5280/2024 ORDER DATED: 22/07/2025 undefined medical contingency, ought to have remained vigilant in knowing the status and stage of their suit. A litigant who has remained idle and negligent is not termed as a 'vigilant litigant'. Nowadays, even the courts have been modernized and well equipped with modern tools. Status of every proceeding can be seen and verified by visiting the official website of the Court. In the modern era, not having knowledge about the order being passed in the matter cannot be construed as a sufficient cause.
16. Considering the aforesaid facts and the law laid down by the Apex Court in the above referred decisions, I am of the view that applicants have failed to establish sufficient cause for condoning the delay. In case of lack of bonafides, I am not inclined to entertain this application. Resultantly, application fails and the same is dismissed. Rule is discharged accordingly.
(D. M. DESAI,J) RINKU MALI Page 15 of 15 Uploaded by RINKU MALI(HC01574) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:12:01 IST 2025