High Court of Gujarat
THAKKAR HEMRAJ KANJIBHAI SINCE DECD THROUGH HEIRSversusTHAKKAR BALDEVBHAI TRIBHOVANDAD
- Disposal
- 53-ALLOWED / GRANTED @ ADM.STAGE
- Bench
- ILESH VORA
Holding
The court allowed the condonation of delay, permitting the restoration of the Second Appeal.
Summary
The applicant sought condonation of a 609‑day delay in filing a restoration application for a Second Appeal that had been dismissed for want of prosecution. The Second Appeal pertained to a specific‑performance suit filed in 1989, which after a series of trials and a First Appeal, was allowed in 2007 directing the defendants to execute a sale deed. The appeal was later dismissed on 11‑Oct‑2023 after the appellants failed to appear, and one of the original defendants had died, with his heirs now joined. The applicant argued that the advocate representing them was elevated to the bench and that the execution court notice caused the delay, seeking a liberal construction of Section 5 of the Limitation Act. The respondent contended that the delay was inordinate, negligent, and not supported by sufficient cause, relying on Supreme Court precedents. Applying the principles from Pathapati Subba Reddy (2024) and Basawaraj, the court held that the reasons provided amounted to sufficient cause and allowed the condonation of delay, permitting the restoration application.
Issues considered
- Whether a delay of 609 days in filing a restoration application for a Second Appeal can be condoned under Section 5 of the Limitation Act.
- Whether the death of an appellant and the elevation of the applicant's advocate constitute sufficient cause for condonation.
- Whether the court may consider the merits of the underlying appeal while deciding on condonation of delay.
Legislation cited
- Limitation Acts. 3, s. 5
Subjects
condonation of delayLimitation Actrestoration of appealsecond appealspecific performancenon‑prosecutionadvocate elevationsubstantial justice
Judgment
C/CA/4345/2025 ORDER DATED: 16/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 4345 of
2025
In F/MISC. CIVIL APPLICATION/22193/2025
In R/SECOND APPEAL/210/2007
==========================================================
THAKKAR HEMRAJ KANJIBHAI SINCE DECD THROUGH HEIRS & ORS.
Versus
THAKKAR BALDEVBHAI TRIBHOVANDAD & ANR.
==========================================================
Appearance:
MR JEET B KARIA(11991) for the Applicant No.
1,1.1,1.1.1,1.1.2,1.1.3,1.1.4,1.2
MR KV SHELAT(834) for the Respondent
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 16/01/2026
ORAL ORDER
1. This application has been preferred for condonation of delay
causing in filing Restoration Application.
2. The necessary facts giving rise to file present application are
that, the Second Appeal, challenging the judgment and decree
of the First Appellate Court being No. 210 of 2007 filed by
original defendant was dismissed for want of non-prosecution.
The suit for specific performance being Special Civil Suit No.
148 of 1989, came to be filed by one Thakkar Baldev
Tribhovandas against Thakkar Hemraj Kantilal and Thakkar
Chimanlal Ratilal. The suit after full fledged trial came to be
dismissed by the Civil Court Dhrangadhra on 30.04.1994. The
matter went to the High Court and due to amendment in the
jurisdiction, the First Appeal transferred to the Additional
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C/CA/4345/2025 ORDER DATED: 16/01/2026
District Court, Dhrangadhra being Appeal No. 1 of 2006. The
said Appeal was allowed in the year 2007 and defendants were
directed to execute the sale deed in favour of plaintiff of the
suit property. The original defendants questioned the legality
and propriety of the appellate judgment by preferring Second
Appeal No. 210 of 2007. In said Second Appeal, substantial
question of law being framed on 25.07.2008 and Second
Appeal was admitted. Vide order dated 11.10.2023, the
Second Appeal came to be dismissed for want of prosecution
as despite of service of advocate notice upon the appellants –
original defendants, no one has appeared for and on behalf of
appellants.
3. In the aforesaid facts and circumstances, in order to file
restoration application to restore the Second Appeal, there is a
delay of 609 days caused in filing the Restoration Application.
The original defendant No. 1 – Thakkar Hemraj Kanjibhai is
passed away pending the appeal and the legal heirs of the
deceased defendant have been joined as appellants – original
defendants. The original defendant no. 2 – Thakkar Chimanlal
Ratilal is alive and contesting the proceedings.
4. Mr. Jeet B. Karia, learned advocate appearing for the
applicants submitted that, the advocate of the applicants
pending the Second Appeal has been elevated to the Bench of
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C/CA/4345/2025 ORDER DATED: 16/01/2026
this Court and after the dismissal of the Appeal, the advocate
notice from the executing court being received and in that
view of the matter, the time was consumed in pursuing the
matter and considering the law point, as framed by this Court
while admitting the appeal, there are merits in the appeal and
cause is surviving because, the original defendant no. 2
Thakkar Chimanlal Ratilal is alive.
5. In such circumstances as referred to above, it was submitted
that, the reasons mentioned are sufficient to condone the delay
and instead of strict approach, raising technical ground, let the
grounds for delay be liberally construed to do substantial
justice.
6. Opposing the application, Mr. K. V. Shelat, learned advocate
for the opponent, reiterating the contends of the affidavit
submitted that, the explanation offered is neither bonafide nor
sufficient within the meaning of Section 5 of the Limitation
Act and plea of sufficient cause must be established by proper
and cogent explanation, which is conspicuously absent in the
present case. On the factual aspect, it was submitted that, the
applicants were aware about the proceedings and there was a
gross negligence on their part in not appearing before this
Court and therefore, the ground about the notice of the
executing court, as raised for condonation of delay, is neither
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C/CA/4345/2025 ORDER DATED: 16/01/2026
credible nor acceptable and the explanation is vague and
cannot justify condonation of delay. In support of the
submission, heavy reliance being placed on the judgment of
Supreme Court in case of Thirunagalingam Vs.
Lingeswaran (2025) (0) AIJEL – SC–75313, to submit that,
the delay should not be condoned merely as an act of
generosity and the pursuit of substantial justice must not come
at the cost of causing prejudice to the opposite party.
7. It is well settled that the discretion to condone delay has to be
exercised judiciously, based on the facts and circumstances of
each case. It is also equally well settled that even though
limitation may harshly affect the rights of the parties but it has
to be applied with all its rigour as prescribed under the statute,
as the Courts have no choice but to apply the law as it stands
and they have no power to condone the delay on equitable
grounds.
8. In a case of Pathapati Subba Reddy (died) by L.Rs. and
others Vs. Special Deputy Collector (L.A.), 2024 SCC
Online SC 513, the Hon'ble Apex Court 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:
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C/CA/4345/2025 ORDER DATED: 16/01/2026
(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
Page 5 of 8
C/CA/4345/2025 ORDER DATED: 16/01/2026
the delay and condoning the delay for the reason that
the conditions have been imposed, tantamounts to
disregarding the statutory provision."
9. In a case of Basawaraj Vs. Special Land Acquisition
Officer, the Hon'ble Apex Court held as under:-
"12. It is a settled legal proposition that law of
limitation may harshly affect a particular party but it
has to be applied with all its rigour when the statute
so prescribes. The Court has no power to extend the
period of limitation on equitable grounds. "A result
flowing from a statutory provision is never an evil. A
Court has no power to ignore that provision to
relieve what it considers a distress resulting from its
operation."
The statutory provision may cause hardship or
inconvenience to a particular party but the court has
no choice but to enforce it giving full effect to the
same. The legal maxim dura lex sed lex which means
"the law is hard but it is the law", stands attracted in
such a situation. It has consistently been held that,
"inconvenience is not" a decisive factor to be
considered while interpreting a statute"
25. In the aforesaid case law, the Hon'ble Apex
Court further held as follows:-
"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
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C/CA/4345/2025 ORDER DATED: 16/01/2026
for want of bona fide 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."
10. Considering the ratio laid down in the aforesaid case laws and
applying the same to the case of present case, it appears that,
the applicants are residents of Calcutta and their advocate
during the pendency of Second Appeal, elevated to the Bench
of this Court and the Execution Petition is pending before the
Dhrangadhara, Dist.: Surendranagar, State of Gujarat. In such
circumstances, it cannot be said that the applicants slept over
of their right and throughout the proceedings, they were
negligent in pursuing the matter. It is relevant to note that, this
application seeking condonation of delay is for filing
restoration application to restore the Second Appeal. Thus, this
court is satisfied that the reasons mentioned, preventing the
applicants in filing restoration application are sufficient to
condone the delay.
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C/CA/4345/2025 ORDER DATED: 16/01/2026
11. Resultantly, the application stands allowed. Liberty is reserved
to raise all the contentions, which have been raised by the
opponent, at the stage of hearing the restoration application.
Direct service is permitted.
(ILESH J. VORA,J)
P.S. JOSHI
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 16/01/2026 15:01:05
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