Gujarat High Court
Dy Engineer Through P.G.V.C.L vs Bhimabhai Sidibhai Odedra on 5 May, 2025
NEUTRAL CITATION
C/SCA/6225/2025 ORDER DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6225 of 2025
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DY ENGINEER THROUGH P.G.V.C.L.
Versus
BHIMABHAI SIDIBHAI ODEDRA
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Appearance:
MR RITURAJ M MEENA(3224) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/05/2025
ORAL ORDER
1. Heard learned advocate Mr.Rituraj M. Meena for the petitioner.
2. The present application is filed under Article 227 of the Constitution of India seeking following relief:-
A. Your Lordships may be pleased to admit and allow this application;
B. Your Lordships may be pleased to quash and set side the order dated 07.02.2024 passed by the Learned Additional District Judge At Keshod in Miscellaneous Civil Appeal no. 12 of 2023(Annexure -A) along with the order dated 08.08.2014 passed by Learned Senior Civil Judge, Keshod Dist: Junagadh in SPCS/135/2012 ((Annexure - B) and the order dated 15.09.2023 passed by Learned Principal Senior Civil Judge, Keshod in CMA/10/2020 and further be pleased to restore the main suit i.e. SPCS/135/2012 before learned Learned Senior Civil Judge, Keshod Dist: Junagadh to its original file.(Annexure - C) C. Your Lordships may pass any further orders or directions as deemed fit in the interest of justice.Page 1 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025
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3. At the outset, it is required to be noted that by way of this one writ application/petition, all the three orders have been challenged which could not have been challenged by the petitioner. Nonetheless, this Court would not like to be technical while adjudicating the merits of the matter but cautioning the petitioner being public sector undertaking having legal department to keep this factor in mind while filing such writ application in future vis-à-vis challenge of different set of the orders.
4. As far as possible, the parties will be referred to as per their original position before the Trial Court.
5. The short facts of the case appears to be that the petitioner is the original plaintiff who had filed Special Civil Suit No.111 of 2002 against respondent before Civil Court Porbandar, which was initially transferred to Civil Court Junagadh, having renumbered as Special Civil Suit No. 48 of 2012, and finally transferred in the court of Civil Judge, Page 2 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined Keshod and renumbered as Special Civil Suit No.135 of 2012. 5.1 The suit appears to have been filed for recovery of Rs.5,09,912/- from the defendant for electricity dues. It appears from record, more particularly, the order dated 08.08.2014 passed by the Trial Court, thereby suit was dismissed for default as defendant was not served and no effective steps were taken by the plaintiff and so also none present for plaintiff when suit was called out for hearing. It was specifically observed in the said order that when the matter was called out, neither plaintiff nor its advocate was present.
5.2 In light of the aforesaid facts and observations so made, the Trial Court has dismissed the suit on 08.08.2014. The plaintiff, having slept over his right to get the suit restored back on its file, suddenly woke up from slumber, filed an application for restoration on 26.10.2020, wherein there was delay of 6 years, 1 month and 18 days in filing such restoration application.
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NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined 5.3 Plaintiff has filed delay application being Civil Misc. Application No.10 of 2020 before the Trial Court. The Trial Court, after hearing the parties, vide its order dated 15.09.2023, has rejected such delay application. 5.4 The plaintiff had preferred a Civil Misc. Appeal No.12 of 2023 before the Appellate Court whereby challenged the aforesaid order passed by the Trial Court. As such, such appeal itself would not have been maintainable against said order passed by trial Court.
5.5 Nonetheless, plaintiff failed to satisfy the Appellate Court, thereby, its appeal is dismissed by the Appellate Court vide its order dated 07.02.2024.
6. The plaintiff, having so aggrieved by aforesaid orders passed by the Trial Court as well as the Appellate Court, has preferred the present writ application on 07.01.2025 almost after about 11 months from passing last order of Appellate Court.
SUBMISSION OF THE PETITIONER-PLAINTIFF Page 4 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined
7. Learned advocate Mr. Meena would submit that Trial Court as well as Appellate Court has failed in its duty to condone the delay in filing restoration application by plaintiff, thereby caused injustice to plaintiff which is a public institution.
7.1 Learned advocate Mr. Meena would submit that there was a delay on the part of plaintiff in filing restoration application, but it being a public institution dependent on its panel advocate and due to lack of communication and transfer of proceeding as well as no intimation received by the plaintiff from its advocate which first resulted into dismissal of suit and thereafter, delay in filing restoration application which ought to have been allowed by the Trial Court. 7.2 Learned advocate Mr. Meena would submit that there is no mala fide intention on the part of officer of the petitioner but because of delay in filing such restoration application, facts so set out in the application would indicate that there was a sufficient cause made out, whereby, plaintiff Page 5 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined could not submit restoration application within stipulated time. 7.3 Lastly, learned advocate Mr. Meena would submit that this court may impose cost upon the petitioner and compensating the other side by paying such cost, the delay application may be allowed.
7.4 Making the above submission, learned advocate Mr. Meena would request this court to allow the present writ application.
ANALYSIS
8. The short question falls for consideration of this court is whether any gross error or jurisdictional error committed by Trial Court or Appellate Court while rejecting the delay application and/or appeal filed by the petitioner, thereby, not condoning the delay of 6 years, 1 month and 18 days in filing restoration application by the plaintiff?
9. The facts, more or less, which are observed herein above not in dispute. It appears from bare reading of order dated 08.08.2014 passed by the Trial Court while dismissing the suit Page 6 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined would suggest that though suit was filed in the year 2002 seeking recovery of Rs.5,09,912.81 from defendant, but defendant was never served with the notice of such suit. No effective steps were taken by the plaintiff whereby, the defendant could have been served with the notice of the suit proceedings.
10. It further appears that neither plaintiff nor its advocate remained present to conduct the suit proceedings though several adjournments were granted. Even after dismissal of the suit, plaintiff has slept over his right and woke up from slumber after about six years and suddenly realized about the dismissal of the suit so filed in the year 2002. It is so mentioned in its delay application that panel advocate had resigned whereby he might have been withdrew from suit but what steps thereafter taken by plaintiff has not coming forth on record having not disclosed.
11. It is very surprising and astonishing that despite such huge delay, as stated in the delay application itself that despite Page 7 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined getting sanction from the department concerned and came to know of the dismissal of the suit in January 2020, the plaintiff took almost ten months to file restoration application. It appears that application was filed on 26.10.2020.
12. As such, there was no proper explanation coming forth from the side of plaintiff about delay of 10 months in filing restoration application even from the date of receiving the knowledge of dismissal of the suit.
13. The aforesaid facts would clearly suggest that how casually, carelessly and insensitively, plaintiff being a public sector undertaking, looks after its legal proceedings instituted in the court of law. Normally, this Court would condone the delay on the part of public institution by taking note of the fact that public money and interest of public can be saved which would involve in the matter so filed by State instrumentality. At the same time, almost in every matter, it has been so observed and well experienced by Court that such leniency on the part of Court shown to public sector Page 8 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined undertaking or State as the case may be, is not taken seriously by public institution and never tried to improve their functioning with a mindset that Court will always come to their rescue whenever there is a delay, even if there is a gross delay as public interest involved.
14. According to my view, it is now a time when such mindset on the part of public sector undertaking or State as the case may be requires to be corrected, otherwise there would never be any improvement in their functioning. Thus, this Court is required to take serious note of functioning of public sector undertaking or State and its officers while examining delay application so filed by them.
15. When the Court is applying certain principles while adjudicating delay application whenever application is an individual and having so found such applicant careless, negligent, indolent and no satisfactory explanation coming forth, not condoning such delay then, such principles would also be applicable to applicant being public sector undertaking Page 9 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined or State as the case may be. According to me, no different approach should be made in a case where applicant is public sector undertaking like the present one. Of course, some leave way always permissible which would take note by Court while adjudicating delay application filed at instance of State or its instrumentalities knowing style of its functioning but it should not give them licence to act negligently in every matter whereby, not to file legal proceeding in time.
16. The law on the subject of condonation of delay is fairly well settled by Hon'ble Supreme Court of India in its following decisions:-
17. It is apt to first rely upon the decision of Honourable Supreme Court of India in a 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 Page 10 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined 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 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)
18. It is apposite to refer and rely upon a recent decision of the Hon'ble Supreme Court of India in the case of K.B. Lal Page 11 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined (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 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.
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NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined 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 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) Page 13 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined
19. Last but not least, it is also profitable to refer to and rely upon ratio laid down by recent past decision of Honourable Supreme Court of India in a case of Pathapati Subba Reddy (Died) BY L RS & ORS V/S Special Deputy Collector (LA) reported in 2024 INSC 286 : 2024 (4) SCR 241 : 2024 (4) Scale 846 wherein after referring to its previous decisions, summarized the case law on the issue of limitation vis-a-vis condonation of delay in context of "sufficient cause". It has been so observed and held as under, "[26] On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;Page 14 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025
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(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)
20. It is also profitable to rely upon the decision of the Hon'ble Supereme 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 Page 15 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined 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)
21. Thus, in view of the aforesaid position of law, stand on date, keeping in view the aforesaid facts that there is no plausible explanation coming forth in the delay application thereby, not showing and in fact not made out any sufficient cause by plaintiff in filing its restoration application, and as such, there is a gross negligence on the part of plaintiff in pursuing its legal remedy in not filing restoration application for quite long time, that too, filed after 10 months from the date of its knowledge of dismissal of suit, would not entitle plaintiff to pray any mercy/leniency from this Court.
22. Considering the aforesaid facts and circumstances of the Page 16 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined case, I am of the view that there is no error, much less any gross error and/or jurisdictional error committed by the Trial Court while rejecting delay application. No interference is required by this Court while exercising its power under Article 227 of the Constitution of India, which is otherwise very narrow and limited, thereby, it cannot substitute its view over the view of the Trial Court. [See Sameer Suresh Gupta Through Pa Holder vs. Rahul Kumar Agarwal reported in 2013 (9) SCC 374 and M/s Garment Craft vs. Prakash Chand Goel reported in 2022 (4) SCC 181].
23. Before parting, I would like to observe that against the order passed by the Trial Court whereby it rejected the impugned delay application on 15.09.2023, petitioner could not have maintained the appeal under Order XLIII Rule 1 of CPC, as the same is not the correct remedy.
24. Nonetheless, this Court has after examined all the orders challenged in the present application, only observed that there is no merit in the present application, thereby, not disturbed Page 17 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025 NEUTRAL CITATION C/SCA/6225/2025 ORDER DATED: 05/05/2025 undefined any of the orders impugned in the present writ application including the order so passed by Appellate Court.
25. In view of the aforesaid reasons, facts so observed and position of law stand as on date, none of submissions made by learned advocate Mr. Meena, are appealed to this Court. So, this Court would not like to issue even notice to respondent by imposing costs upon the petitioner. Thus, all the submissions made by learned counsel Mr.Meena are hereby rejected. CONCLUSION
26. The upshot of the aforesaid observations, discussion and reasons, I do not find any merit in the present application, which requires to be rejected and in fact, it is hereby REJECTED. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 18 of 18 Uploaded by MOHD MONIS(HC01900) on Wed May 07 2025 Downloaded on : Thu May 08 00:35:19 IST 2025