Gujarat High Court
Sabarmati Ashram Gaushala Trust vs Decd. Bakorbhai Kabhai Tadvi on 29 July, 2025
NEUTRAL CITATION
C/SCA/19743/2017 JUDGMENT DATED: 29/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19743 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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SABARMATI ASHRAM GAUSHALA TRUST
Versus
DECD. BAKORBHAI KABHAI TADVI & ORS.
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Appearance:
MR JIGAR M PATEL(3841) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 1.3
NOTICE SERVED for the Respondent(s) No. 1.1,1.2,1.4,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 29/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Jigar M. Patel for the petitioner.
Though served, none appears for the respondents.
2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
“A) This petition may kindly be admitted;
B) This Hon’ble Court may be pleased to issue a writ of, or in the
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nature of, certiorari or any other appropriate writ, order or direction
quashing and setting aside order dated 29-6-2017 passed by the Court
of 2nd Additional District Judge, Kheda, Nadiad in Civil
Miscellaneous Application No.10 of 2012 -Annexure “A” and be
further pleased to allow the aforesaid Civil Miscellaneous Application
No.10 of 2012 by condoning the delay caused in filing Regular Civil
Appeal filed by the petitioner against order dated 2-09-1996 passed by
the Court of Civil Judge (Junior Division), Matar in Civil Suit No.88 of
1994 and be further pleased to direct Court of 2nd Additional District
Judge, Kheda, Nadiad to decide the main Appeal on merits;
C) This Hon’ble Court may be pleased to issue a writ of, or in the
nature of, certiorari or any other appropriate writ, order or direction
quashing and setting aside order dated 29-6-2017 passed by the Court
of 2nd Additional District Judge, Kheda, Nadiad below an application-
Exhibit 39 in Civil Miscellaneous Application No.10 of 2012 –
Annexure “H” and be further pleased to allow the said application-
Exhibit 39 in terms of prayers made in paragraph nos.6(a) to 6(b) of
the aforesaid application-Exhibit 39.
D) Such other(s) and further relief(s) which this Hon’ble Court may
deem fit to be granted in the interest of justice;”
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:
5. The petitioner herein is the original plaintiff who instituted
Civil Suit No. 88 of 1994 before the Court of Civil Judge
(Junior Division), Matar against the respondents herein. The
suit is filed seeking eviction of the respondents from the suit
property and to get back the possession of the suit property
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from the defendants. The reasons best known to the plaintiff,
neither the plaintiff nor its advocate remained present before
the Trial Court as recorded in the order dated 2nd
September, 1996 of the Trial Court that the defendant No.1
died on 24th February, 1995, against whom the suit came to
be filed and it got abated as no effective steps were taken by
the plaintiff to bring his legal heirs on record. It is further
recorded in the said order that no reliefs have been prayed
against defendants Nos. 2 to 5. Thus, the Trial Court has
disposed of the suit being abated vide its order dated 2nd
September, 1996.
6. The plaintiff appears to have preferred an appeal before the
District Court challenging the aforesaid order, but such
appeal came to be filed only in December-2011, wherein
there was a huge delay of 16 years in filing such appeal. So,
the plaintiff preferred an impugned delay application being
Civil Misc. Application No. 10 of 2012, contending inter alia
that due to non-communication of disposal of the suit by its
advocate, such delay was occurred in filing the appeal. It is
also stated that the person who was looking after the affairs
of the plaintiff-Trust suddenly fallen sick and later on died. It
is so mentioned that when other suits filed by the plaintiff
against other respective defendants of similar nature came
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for hearing, at that point of time, it came to its notice on 28th
December, 2011 that the aforesaid suit got abated.
7. After hearing the parties, the Appellate Court has rejected
the impugned delay application against which the present
writ application is filed.
8. SUBMISSIONS OF THE PETITIONER – PLAINTIFF:
8.1. Learned Advocate Mr. Patel would submit that the plaintiff is
the Charitable Trust registered under the Public Trusts Act
and its affairs are look after by several persons but the
person who was looking after the affairs of the suit died and
as such learned advocate engaged by the plaintiff had not
communicated about disposal of the suit being abated in
time, which caused the delay in filing the appeal which ought
to have been condoned by the Appellate Court.
8.2. Learned Advocate Mr. Patel would further submit that while
adjudicating delay application, a liberal approach requires to
be taken by the Appellate Court, thereby, it can advance
justice between the parties.
8.3. Learned Advocate Mr. Patel would further submit that there
was no malafide intention and/or any negligence on the part
of the plaintiff while pursuing its legal remedy but due to the
reasons/cause set out in the impugned application, the appeal
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could not be filed within the stipulated time.
8.4. Learned Advocate Mr. Patel would further submit that with
reasonable costs imposed upon plaintiff, the delay could have
been condoned by the Appellate Court, thereby the appeal
could have been decided on its merits and as such, it was
against disposal of the suit being abated, thereby such
technical order could have been cured by the Appellate Court
by granting one opportunity in favour of the plaintiff,
thereby, the suit could have been decided on its merits.
8.5. Learned Advocate Mr. Patel would further submit that as per
the settled legal position of law, the length of delay could not
be material but the cause which has been espoused in the
delay application needs to be considered by the Appellate
Court while adjudicating such delay application. It is
submitted that having not appreciated such facts which are
stated in the delay application, which constituted sufficient
cause, a grave error was committed by the Appellate Court
while rejecting the delay application.
8.6. So, making the above submissions, learned Advocate Mr.
Patel would request this Court to entertain the present writ
application.
8.7. No other and further submissions are made.
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POINT FOR DETERMINATION
9. The short question falls for consideration of this Court, as to
whether in the facts and circumstances of the present case, is
there any gross error of law and/or any jurisdictional error
committed by the Appellate Court while rejecting Civil
Miscellaneous Application No. 10 of 2012 filed by the
petitioner-plaintiff?
ANALYSIS:
10. The facts which are narrated hereinabove are not in dispute.
The suit which was filed in the year 1994 was disposed of as
abated in absence of plaintiff and its lawyer and as such
defendant no.1 died but no effective steps taken to bring his
legal heirs on record. So, trial Court vide its order dated 2nd
September, 1996 disposed of the suit. For quite long time, no
effective steps were taken by the plaintiff so far as setting
aside such abetment and getting the suit restored back on its
file, which can be seen from the record itself.
11. The plaintiff tried to explain the huge inordinate delay of 16
years in filing the appeal on two premises: firstly, that the
advocate engaged by the plaintiff had not communicated
about the aforesaid order passed by the Trial Court and
secondly, the person who was looking after the affairs of the
plaintiff-Trust died. None of the aforesaid explanations would
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justified such huge inordinate delay on the part of the
plaintiff as there was a long delay in filing the appeal
requires to be explained properly and satisfactorily. It is true
that the length of delay is not material, but the cause which
prevented the applicant in approaching the Court requires to
be seen, needs to constitute sufficient cause.
12. The Appellate Court has considered this aspect in detail by
clearly observing that no effective steps were taken by the
plaintiff between 2nd September, 1996, till 28th December,
2011. It further noticed that the person who was looking
after the affairs of the plaintiff i.e. Kantibhai A. Jani died in
the year 2001 and thereafter also, the plaintiff could have
taken effective steps to check the status of the suit which
appears to have not been done.
13. It further appears from the plain reading of the delay
application and so also, after going through the impugned
order, due to gross negligence on the part of the plaintiff, at
the first occasion, the suit got abated as having not brought
on record the legal heirs of defendant No. 1 against whom
the prayers were made in the suit. Thereafter also, after
about 16 years, one fine day, the plaintiff checked the status
of suit in question and having realized that it was abated in
the year 1996, filed the appeal before the District Court in
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the year 2012.
14. It is interesting to note that in para-2 of the impugned delay
application, it is clearly stated that in past, when the plaintiff
inquired about the update of suit from its lawyer, it was
replied by the lawyer that on verifying the next date, it would
inform the plaintiff. If such a statement is taken on its face
value, the plaintiff took almost 16 years to get it check such
status from the lawyer, if in fact, the lawyer did not respond
in time. The entire burden appears to have been shifted on
the shoulder of the lawyer, which would be common ground
taken by every litigant wherever there is a huge delay in
filing any proceedings in court of law.
15. So, both these grounds which are narrated by the plaintiff are
nothing but an excuse on the part of the plaintiff not to file
appeal within stipulated time.
16. As such, the 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:
16.1. 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
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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 mayPage 9 of 16
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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)
16.2. 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 thePage 10 of 16
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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)
16.3. 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 (SeePage 11 of 16
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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
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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)
16.4. 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:
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(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)
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16.5. 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)
17. Thus, in view of the aforesaid facts and circumstances of the
case and the position of law as it stands as on date, I do not
find any merit in the writ application, which requires to be
rejected.
18. At this stage, learned advocate Mr. Patel would request this
Court that the plaintiff may be allowed to file a fresh suit as
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the suit in question abated before framing of the issues,
thereby, as per Order 9, Rule 4 of the CPC, fresh suit can be
filed for the same cause of action. This Court would not opine
anything about the same, but if permissible in law, the
plaintiff may file appropriate suit with appropriate prayers
against the legal heirs of the deceased-defendant no.1. The
Civil Court shall have to decide it in accordance with law.
CONCLUSION
19. In view of the aforesaid, the impugned order is neither
erroneous nor perverse nor arbitrary and not passed contrary
to any settled principle of law, thereby, no interference is
required by this Court.
20. As such, I am in complete agreement with the view taken by
the Appellate Court while rejecting the impugned delay
application inasmuch as no sufficient cause was made out by
the petitioner/plaintiff while filing the appeal, rather it found
to be gross negligent in filing appeal which filed after about
16 years from passing of the order impugned in the appeal.
21. In view of the aforesaid conclusion, the present writ
application is hereby rejected. Notice is discharged. No order
as to cost.
(MAULIK J.SHELAT,J)
Nilesh
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