Gujarat High Court
Maheboobbhai Gafarbhai Khalifa vs Bhikhabhai Hadubhai Jesadiya on 10 January, 2025
NEUTRAL CITATION
C/SCA/14347/2024 ORDER DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14347 of 2024
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MAHEBOOBBHAI GAFARBHAI KHALIFA
Versus
BHIKHABHAI HADUBHAI JESADIYA
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/01/2025
ORAL ORDER
1. The present petition is filed under Article 227 of the
Constitution of India seeking following reliefs:-
“(A) YOUR LORDSHIPS may be pleased to admit and
allow this petition.
(B) YOUR LORDSHIPS may be pleased to issue
appropriate writ, order or directions, quashing and
setting aside the order dated 19.01.2024 passed by
the Ld. Additional District Judge, Jamnagar in Civil
Misc. Application No. 87 of 2023 and in further may
be pleased to allow the application of the petitioner
being Civil Misc. Application No. 87 of 2023,
(Annexure-A), as prayed for, in the interest of justice;
(C) Pending admission, hearing and final disposal of
the above application YOUR LORDSHIPS may be
pleased to stay further operation, execution and
implementation of the impugned order dated
19.01.2024 passed by the Ld. Additional District
Judge, Jamnagar in Civil Misc. Application No. 87
of 2023, (Annexure-A) in the interest of justice;
(D) The Hon’ble Court may kindly be pleased to
grant any other appropriate relief as the nature
circumstances of the case may require.”
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2. The parties will be referred to as per their original
position before the Trial Court.
3. FACTS OF THE CASE:-
3.1 The petitioner happens to be the Original Plaintiff of
Special Civil Suit No. 119 of 2010 filed before the Civil Court,
Jamnagar. The suit appears to have been filed to execute the
sale deed in favour of the Original Plaintiff. After hearing the
parties and considering the evidence on record, the Trial
Court, vide its judgment and decree dated 30.03.2013,
dismissed the suit.
3.2 After dismissal of the suit, the Original Plaintiff
intended to challenge the same by way of an appeal. As there
was a delay of 9 years, 7 months and 338 days in filing such
appeal, the petitioner – Original Plaintiff had filed Civil
Miscellaneous Application No.87 of 2023 to condone the delay
in preferring the appeal.
3.3 The original defendant appears to have objected to
such a long, inordinate, and unexplained delay on the part of
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the Original Plaintiff in filing the First Appeal by filing their
reply Ex.10.
3.4 After hearing the parties and considering the
averments made in the application, the Additional District
Judge, Jamnagar, rejected the delay application, vide its
impugned order dated 19.01.2024.
3.5 Being aggrieved and dissatisfied with the rejection of
the delay application of the petitioner – original Plaintiff by
the Additional District Judge, Jamnagar, vide its impugned
order dated 19.01.2024, passed in Civil Miscellaneous
Application No.87 of 2023 for condonation of delay in
preferring the appeal, the present petition has been filed.
4. CONTENTIONS OF THE PETITIONER:-
4.1 Learned Advocate Mr Pratik Y. Jasani for the
petitioner – Original Plaintiff would submit that the learned
District Court, without appreciating the averments made in the
application and without appreciating the law laid down by the
Hon’ble Apex Court of India while adjudicating the delay
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application, has erroneously rejected the application of the
Original Plaintiff in filing its Appeal.
4.2 He would further submit that the non-intimation of the
impugned judgment and decree passed by the Trial Court by
the advocate engaged by the Original Plaintiff resulted in the
delay in filing the Appeal.
4.3 He would further submit that for some time, the
plaintiff could not contacted his lawyer but as soon as, he
came to know that defendants is in process of sale of the suit
property, at that point of time, the original plaintiff contacted
their lawyer and came to know about the dismissal of Special
Civil Suit No. 119 of 2010 on 30.03.2013.
4.4 He would further submit that there is no malafide, or
dilatory tactic used by the Original Plaintiff, and there is no
ill-intention on the part of the Original Plaintiff to file the
appeal after delay of 9 years, 7 months and 338 days.
4.5 He would further submits that there is no negligence
and or gross negligence on the part of the petitioner in filing
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the appeal after this much delay.
4.6 Mr. P.Y.Jasani, learned advocate has concluded his
argument with the request that, considering the fact, plaintiff
was not aware of the fact of the dismissal of the suit in
question, so, he would request that, on suitable
conditions/cost, if this Court deems it fit to impose upon the
Original Plaintiff, the delay may be condoned.
4.7 No other and further submissions being made by
learned advocate for the petitioner.
4.8 On query being asked by this Court about position of
suit property as on date, Mr. Jasani, learned advocate, under
the instruction of his client, has candidly states that as on
date, suit property has been sold by the original defendants to
third party.
5. ANALYSIS / REASONING
5.1 Before adverting to the whole issue germane in the
present petition, this Court would like to remind itself and
would like to refer decision of the Hon’ble Supreme Court of
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India in the case of Sameer Suresh Gupta TR PA Holder vs.
Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein
the law has been summarized thereby the scope of the power
of the High Court while exercising its power under Article 227
of the Constitution of India has been elaborated. The relevant
observation of the aforesaid judgment reads as under:-
“[6] In our view, the impugned order is liable to be set aside
because while deciding the writ petition filed by the respondent
the learned Single Judge ignored the limitations of the High Court’s
jurisdiction under Article 227 of the Constitution. The parameters
for exercise of power by the High Court under that Article were
considered by the two Judge Bench of this Court in Surya Dev Rai
v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering
various facets of the issue, the two Judge Bench culled out the
following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-
07-2002 in Section 115 of Code of Civil Procedure cannot
and does not affect in any manner the jurisdiction of the
High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to
the High Court, against which remedy of revision has been
excluded by the Code of Civil Procedure Amendment Act No.
46 of 1999 are nevertheless open to challenge in, and
continue to be subject to, certiorari and supervisory
jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued
for correcting gross errors of jurisdiction, i.e. when a
subordinate Court is found to have acted (i) without
jurisdiction – by assuming jurisdiction where there exists
none, or (ii) in excess of its jurisdiction – by overstepping or
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crossing the limits of jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no
procedure specified, and thereby occasioning failure of
justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate Courts
within the bounds of their jurisdiction. When the subordinate
Court has assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does have or
the jurisdiction though available is being exercised by the
Court in a manner not permitted by law and failure of
justice or grave injustice has occasioned thereby, the High
Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact
or of law unless the following requirements are satisfied: (i)
the error is manifest and apparent on the face of the
proceedings such as when it is based on clear ignorance or
utter disregard of the provisions of law, and (ii) a grave
injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e.
which can be perceived or demonstrated without involving
into any lengthy or complicated argument or a long-drawn
process of reasoning. Where two inferences are reasonably
possible and the subordinate Court has chosen to take one
view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised sparingly and
only in appropriate cases where the judicial conscience of
the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion. Care, caution and
circumspection need to be exercised, when any of the
abovesaid two jurisdictions is sought to be invoked during
the pendency of any suit or proceedings in a subordinate
Court and the error though calling for correction is yet
capable of being corrected at the conclusion of the
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proceedings in an appeal or revision preferred there against
and entertaining a petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct the smooth flow
and/or early disposal of the suit or proceedings. The High
Court may feel inclined to intervene where the error is such,
as, if not corrected at that very moment, may become
incapable of correction at a later stage and refusal to
intervene would result in travesty of justice or where such
refusal itself would result in prolonging of the lis. (
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not covert itself into a Court of Appeal and
indulge in re-appreciation or evaluation of evidence or
correct errors in drawing inferences or correct errors of mere
formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to
issue a writ of certiorari and those calling for exercise of
supervisory jurisdiction are almost similar and the width of
jurisdiction exercised by the High Courts in India unlike
English Courts has almost obliterated the distinction between
the two jurisdictions. While exercising jurisdiction to issue a
writ of certiorari the High Court may annul or set aside the
act, order or proceedings of the subordinate Courts but
cannot substitute its own decision in place thereof. In
exercise of supervisory jurisdiction the High Court may not
only give suitable directions so as to guide the subordinate
Court as to the manner in which it would act or proceed
thereafter or afresh, the High Court may in appropriate cases
itself make an order in supersession or substitution of the
order of the subordinate Court as the Court should have
made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini
Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010)
3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49)
“(a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode of
exercise of power by the High Court under these two articles
is also different.
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(b) In any event, a petition under Article 227 cannot be
called a writ petition. The history of the conferment of writ
jurisdiction on High Courts is substantially different from the
history of conferment of the power of superintendence on
the High Courts under Article 227 and have been discussed
above.
(c) High Courts cannot, at the drop of a hat, in exercise of
its power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or Courts
inferior to it. Nor can it, in exercise of this power, act as a
Court of appeal over the orders of the Court or tribunal
subordinate to it. In cases where an alternative statutory
mode of redressal has been provided, that would also
operate as a restrain on the exercise of this power by the
High Court.
(d) The parameters of interference by High Courts in exercise
of their power of superintendence have been repeatedly laid
down by this Court. In this regard the High Court must be
guided by the principles laid down by the Constitution
Bench of this Court in Waryam Singh [Waryam Singh v.
Amarnath, AIR 1954 SC 215] and the principles in Waryam
Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have
been repeatedly followed by subsequent Constitution Benches
and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh
v. Amarnath, AIR 1954 SC 215] , followed in subsequent
cases, the High Court in exercise of its jurisdiction of
superintendence can interfere in order only to keep the
tribunals and Courts subordinate to it, ‘within the bounds of
their authority’.
(f) In order to ensure that law is followed by such tribunals
and Courts by exercising jurisdiction which is vested in them
and by not declining to exercise the jurisdiction which is
vested in them.
(g) Apart from the situations pointed in (e) and (f), High
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Court can interfere in exercise of its power of
superintendence when there has been a patent perversity in
the orders of the tribunals and Courts subordinate to it or
where there has been a gross and manifest failure of justice
or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or just
because another view than the one taken by the tribunals or
Courts subordinate to it, is a possible view. In other words
the jurisdiction has to be very sparingly exercised.
(i) The High Court’s power of superintendence under Article
227 cannot be curtailed by any statute. It has been declared
a part of the basic structure of the Constitution by the
Constitution Bench of this Court in L. Chandra Kumar v.
Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and
therefore abridgment by a constitutional amendment is also
very doubtful.
(j) It may be true that a statutory amendment of a rather
cognate provision, like Section 115 of the Civil Procedure
Code by the Civil Procedure Code (Amendment) Act, 1999
does not and cannot cut down the ambit of High Court’s
power under Article 227. At the same time, it must be
remembered that such statutory amendment does not
correspondingly expand the High Court’s jurisdiction of
superintendence under Article 227.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can be
exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it transpires that
the main object of this article is to keep strict administrative
and judicial control by the High Court on the administration
of justice within its territory.
(m) The object of superintendence, both administrative and
judicial, is to maintain efficiency, smooth and orderly
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functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of
interference under this article is to be kept to the minimum
to ensure that the wheel of justice does not come to a halt
and the fountain of justice remains pure and unpolluted in
order to maintain public confidence in the functioning of the
tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of relief in
individual cases but should be directed for promotion of
public confidence in the administration of justice in the
larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power
under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline pointed out
above.
(o) An improper and a frequent exercise of this power will
be counterproductive and will divest this extraordinary
power of its strength and vitality.”
5.2 It is also apt to reply upon the decision of Garment
Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181,
wherein the Hon’ble Supreme Court of India has held as
under:-
15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [Prakash Chand Goel v. Garment
Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot
be sustained for several reasons, but primarily for deviation from
the limited jurisdiction exercised by the High Court under Article
227 of the Constitution of India. The High Court exercising
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reappreciate, reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory jurisdiction is
not to correct every error of fact or even a legal flaw when the
final finding is justified or can be supported. The High Court is not
to substitute its own decision on facts and conclusion, for that of
the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas
Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69]
The jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or flagrant abuse,
violation of fundamental principles of law or justice. The power
under Article 227 is exercised sparingly in appropriate cases, like
when there is no evidence at all to justify, or the finding is so
perverse that no reasonable person can possibly come to such a
conclusion that the Court or tribunal has come to. It is axiomatic
that such discretionary relief must be exercised to ensure there is
no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this
Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v.
Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp.
101-102, para 6)
“6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a number
of decisions of this Court. The exercise of power under this
article involves a duty on the High Court to keep inferior
Courts and tribunals within the bounds of their authority
and to see that they do the duty expected or required of
them in a legal manner. The High Court is not vested with
any unlimited prerogative to correct all kinds of hardship or
wrong decisions made within the limits of the jurisdiction of
the subordinate Courts or tribunals. Exercise of this power
and interfering with the orders of the Courts or tribunals is
restricted to cases of serious dereliction of duty and flagrant
violation of fundamental principles of law or justice, where
if the High Court does not interfere, a grave injustice
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remains uncorrected. It is also well settled that the High
Court while acting under this Article cannot exercise its
power as an appellate Court or substitute its own judgment
in place of that of the subordinate Court to correct an error,
which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an
inferior Court or tribunal, if there is no evidence at all to
justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which the
Court or tribunal has come to.”
5.3 I have gone through the averments made in the
petition as well as the documents annexed and also perused
the impugned delay application as well as the impugned order
passed thereon by the District Court concerned, which is under
challenged herein.
5.4 It appears from the documents made available with
the petition that the judgment/decree, challenged in the
appeal, were passed on 30.03.2013. The Original Plaintiff, in
its delay application, only averred that due to fault on the part
of plaintiff i.e. himself, he could not contact, at the relevant
point of time, to his own advocate thereby could not verified
status of his suit. Nonetheless, as soon as, he came to know
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about the process of selling of the suit property by defendant,
immediately, he had contacted his lawyer and filed Regular
Appeal on 20.04.2023 wherein, impugned delay application
came to be filed on 03.05.2023. Prima facie, this is nothing
but a gross negligence on the part of the petitioner in pursuing
legal remedy available to him in law.
5.5 Moreover, the only averment made in the delay
application in relation to not preferring the appeal within
stipulated time is due to non-contacting his lawyer by the
plaintiff. The impugned judgment came to be passed on
30.03.2013, whereas, Regular Appeal appears to have been
presented on 20.04.2023. The cause, which is stated in the
delay application by no stretch of imagination, can be
considered as a sufficient cause. Furthermore, an affidavit in
support of delay application suggesting one fact that though it
was sworn on 28.11.2022 but appears to have been filed on
03.05.2023 that too about after 4 months from preparing the
delay application. This conduct itself shows that all
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throughout, plaintiff remained lethargic and negligent in
preferring his legal remedy.
5.6 True, the length of delay is not material while
considering any delay application, but when there is gross
delay, like in the present case on hand, i.e., 9 years, 7 months
and 338 days delay in filing the appeal, there is some
relevance to length of such gross delay. After going through
the documents annexed to the petition, it has come on record
that there is a complete inaction, negligence and lethargy on
the party of plaintiff not to initiate any action after passing of
the impugned judgment and decree and even not to bother to
contact his lawyer for quite long time, though length of appeal
is not material factor, but considering the aforesaid facts and
circumstances of the case, this Court cannot ignore the act of
plaintiff, who remained silent for years together whereby
ultimately equity in favour of third party has been created.
5.7 At this stage, it is profitable to refer and rely upon
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recent passed decision of the Hon’ble Apex Court of India in
the case of H. Guruswamy & Ors. V. A. Krishnaiah Since
Deceased by Lrs. Delivered in Civil Appeal No. 317 of 2025 on
the very aspect of “sufficient cause”, “Criteria / factors to
consider while condoning the delay”, “applicability of law of
limitation in a case of condonation of delay” and “approach
of the Courts while considering application for condonation of
delay”. Relevant paras are 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.
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16. The length of the delay is definitely a relevant matter
which the court must take into consideration while
considering whether the delay should be condoned or not.
From the tenor of the approach of the respondents herein, it
appears that they want to fix their own period of limitation
for the purpose of instituting the proceedings for which law
has prescribed a period of limitation. Once it is held that a
party has lost his right to have the matter considered on
merits because of his own inaction for a long, it cannot be
presumed to be non-deliberate delay and in such
circumstances of the case, he cannot be heard to plead that
the substantial justice deserves to be preferred as against the
technical considerations.
While considering the plea for condonation of delay, the
court must not start with the merits of the main matter.
The court owes a duty to first ascertain the bona fides of
the explanation offered by the party seeking condonation. It
is only if the sufficient cause assigned by the litigant and
the opposition of the other side is equally balanced that the
court may 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.”
5.8 It is apposite to refer to and rely upon a decision of
the Hon’ble Supreme Court of India 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
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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.
21.4. (iv) No presumption can be attached to
deliberate causation of delay but, gross
negligence on the part of the counsel or litigant
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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.”
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5.9 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
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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
5.10 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,Page 21 of 26
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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.”
5.11 It is also profitable to rely upon the decision of this
Court in the case of Samusunisha Begaum W/o Dr
Nasarullahkhan Dhaniani Versus Vishnukumar Ambelal Patel
reported in 2012 (3) GLR 2565; 2012 (0) AIJEL-HC 226913,
wherein it has been held as under:-
“24. In the present case, it is undisputed that the suit was
preferred in the year 1987. The issues in the suit were framed by
the Court on 30/9/1995 and the first date of hearing after framing
of issues was 29/11/1995. From the year 1995 to 1999, there was
no progress in the suit. On 20/9/1999, the Civil Court in the
absence of the plaintiff as well as his Advocate, dismissed the suit
for non prosecution. From 20/9/1999 the original plaintiff did not
do anything till he passed away on 9/6/2004. I am at a loss to
fathom that not even once in six years the original plaintiff
thought fit to inquire with his Advocate as regards the status of
the civil suit and its progress even assuming that the original
plaintiff and his family was not in India and had migrated to
U.S.A. If the original plaintiff was so much keen to pursue the suit
with seriousness then probably before leaving for U.S.A. he couldPage 22 of 26
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have even executed a power of attorney in favour of any person,
who could have proceeded with the suit but even that was not
done. The fact that till 9/6/2004 i.e. till the date the original
plaintiff passed away, he did not even bother to inquire once with
his Advocate about the progress and status of the suit, itself goes
to show that he was not at all serious to go ahead with the suit.
Not only this but even thereafter the respondents as legal heirs of
the original plaintiff preferred an application almost after a period
of ten months from the date of demise of the original plaintiff.
25. Under such circumstances, the Trial Court committed a serious
error in condoning delay on the ground that the Advocate Shri
Upadhyay did not inform the original plaintiff as well the
respondents about the dismissal of the suit for non prosecution.
Even if I assume for a moment that the same is true by itself
would be no ground to condone such a long and inordinate delay
as the litigant owes a duty to be vigilant of his own rights and is
expected to be equally vigilant about the judicial proceedings
pending in the Court initiated at his instance. The litigan,
therefore, should not be permitted to throw the entire blame on
the head of the Advocate and thereby disown him at any time and
seek relief. I regret to state that in the present case, learned
Advocate of the plaintiff Shri Upadhyay for some reasons has taken
up the entire blame on his head and it appears that the same has
been done only with a view to get the delay condoned. Over a
period of time there is a growing tendency on the part of an
Advocate to file affidavit trying to explain the circumstances, under
which, delay has occurred be it in preferring an appeal or filing an
application for restoration of suit like in the present case etc. I am
of the view that the practice of an Advocate filing his affidavit in
an application filed under Order 9 Rule 9 of Civil Procedure Code
is totally wrong and deserves to be deprecated. I have noticed in
many cases that even though an Advocate is not at fault, he would
file an affidavit taking the entire blame upon himself only because
the lethargic and negligent litigant wants him to file such an
affidavit so that the Court concerned in the name of substantial
justice would condone the delay. Affidavit of an Advocate may
come on record in the rarest of rare circumstances and not as a
matter of course. Let me assume for a moment that in the present
case, concerned Advocate of the original plaintiff could not remain
present on 20/9/1999 the day on which the Trial Court dismissed
the suit for non prosecution and thereafter he was not able to keepPage 23 of 26
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a track of the suit but was it not the duty of the original plaintiff
to keep watch on the proceedings and inquire once atleast with his
Advocate as regards the status of the suit- This could have been
done even if the original plaintiff and his family was in U.S.A. I
do not blame the original plaintiff in going to U.S.A. but being a
litigant in the Court of Law he is expected to keep a close watch
on the proceedings as well as on the status of such proceedings.
After filing a civil suit a litigant can not go off to sleep and wake
up from a deep slumber after 5 years as if the Court is a storage
of suits filed by such negligent litigants. If that be so, then Court
would be quite justified in dismissing the suit for non prosecutio
and should be loathe enough to restore the suit unless strong
grounds are made out by the party concerned. There is one more
reason why I am very serious in commenting on the practice of
Advocates filing affidavit. There is a general impression in the
mind of the litigants that if a lawyer would file an affidavit saying
that he was unable to attend the Court or because of his
negligence the suit or appeal came to be dismissed then the Court
would very willingly accept such explanation and condone the
delay. This impression needs to be eradicated. Advocates at time
forget that in the zeal to help the client by filing such affidavit
they would land up in difficulty if a litigant would file proceedings
for compensation on the ground of deficiency in service.
26. At this stage, I deem fit and proper to quote para 8 of the
Supreme Court decision in case of Salil Dutta V/s. T. M. & M. C.
Private Ltd. reported in (1993) 2 SCC 185.
[“8.The Advocate is the agent of the party. His acts and
statements, made within the limits of Authority given to
him, are the acts and statements of the principal i.e. the
party who engage him. It is true that in certain situations,
the Court may, in the interest of justice, set aside a
dismissal order or an ex parte decree notwithstanding the
negligence and/or misdemeanour of the Advocate where it
finds that the client was an innocent litigant but there is no
such absolute rule that a party can disown its Advocate at
any time and seek relief. No such absolute immunity can be
recognized. Such an absolute rule would make the working
of the system extremely difficult. The observations made in
Rafiq [AIR 1981 SC 1400] must be understood as an absolute
proposition. As we have mentioned hereinabove, this was anPage 24 of 26
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on-going suit posted for final hearing after a lapse of seven
years of its institution. It was not a second appeal filed by a
villager residing away from the city, where the Court is
located. The defendant is also not a rustic ignorant villager
but a private limited company with its head office at
Calcutta itself and managed by educated businessmen who
know where their interest lies. It is evident that when their
applications were not deposed of before taking up the suit
for final hearing they felt piqued and refused to appear
before the Court. May be, it was part of their delaying
tactics as alleged by the plaintiff. Maybe not. But one thing
is clear they chose to non-cooperate with the Court. Having
adopted such a stand towards the Court, the defendant has
no right to ask its indulgence. Putting the entire blame upon
the Advocate and trying to make it out as if they were
totally unaware of the nature or significance of the
proceedings is a theory which cannot be accepted and ought
not to have been accepted.”]5.12 Keeping in mind the ratio laid down in the
aforementioned decisions and applying it to the facts of the
case on hand, I am of the opinion that this is a case of gross
negligence on the part of the plaintiff while pursuing the legal
remedy available to him under the law.
5.13 In view of the aforesaid ratio of the decisions of
Hon’ble Supreme Court of India, I am of the opinion that the
District Court has not committed any error of law, much less
any gross/apparent error of law and/or any jurisdictional error,
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which requires any interference by this Court under Article 227
of the Constitution of India.
5.14 Thus, in view of the above said position of law and
delay application lacks sufficient cause, such delay application
requires to be rejected which is rightly rejected by the District
Court vide its impugned order.
6. CONCLUSION:-
6.1 The upshot of the aforesaid observation, discussion,
and reasons, I am of the opinion that the order impugned in
the petition does not require any interference under Article 227
of the Constitution of India, as no sufficient cause is made out
by the petitioner while preferring the appeal after about 9
years, 7 months and 338 days before the District Court after
the passing of the judgment and decree by the trial Court.
Thus, there is no merit in the petition, and the same is
dismissed in limine. No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
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