POONAMBEN W/O ASHOKBHAI PATEL ( LHS OF LATE ASHOKBHAI MANUBHAI PATEL )versusLHS OF LATE BABARBHAI SHANKARBHAI SOLANKI'S

       C/CA/4425/2025                                   ORDER DATED: 30/06/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 4425 of
                              2025
                               In
                    F/FIRST APPEAL/603/2025

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      POONAMBEN W/O ASHOKBHAI PATEL ( LHS OF LATE ASHOKBHAI
                      MANUBHAI PATEL ) & ORS.
                               Versus
        LHS OF LATE BABARBHAI SHANKARBHAI SOLANKI'S & ORS.
==========================================================
Appearance:
MR VEDANT D GAIKWAD(10444) for the Applicant(s) No. 1,2,3
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
RULE SERVED BY DS for the Respondent(s) No. 1.1.1,1.1.2,1.2,3,4,5,6,7,8
RUSHABH H SHAH(7594) for the Respondent(s) No. 10,11,12,9
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
           and
           HONOURABLE MR. JUSTICE R. T. VACHHANI

                                Date : 30/06/2026

                             ORAL ORDER
              (PER : HONOURABLE MR. JUSTICE ILESH J. VORA)


1.     By way of this application, the applicants seek condonation of delay
       caused in preferring the First Appeal.


2.     Brief facts leading to file this application are that:-


(i)    The applicants being legal heirs of Ashok Manubhai Patel had filed
       Civil Suit No. 234 of 2020 in the Court of Civil Judge at Vadodara
       for declaration, permanent injunction, cancellation of registered sale
       deed and specific performance of the contract with respect to the suit
       property, against the defendants – respondents herein.




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(ii) The suit was filed through power of attorney holder. The advocate
    Mr. I. Y. Patel was given an amount of Court Fees of Rs.1,12,500/-.
    After filing of the suit, the advocate concerned neglected in making
    payment of court fees. The matter was referred to Court Fees
    Inspector. He had directed to pay court fees within stipulated time.
    The plaintiff did not have paid the Court fees till 28.04.2022. The
    respondents defendants moved an application before the trial Court
    under Order 7 Rule 11 (c) of the Code of Civil Procedure, for
    rejection of plaint, as the plaintiffs failed to submit requisite court
    fees. The trial Court on the same day, i.e. on 11.05.2022 served the
    notice upon the advocate concerned and in the second session, in
    absence of plaintiffs and their pleader, the plaint came to be
    dismissed under Order 7 Rule 11 of CPC.


(iii) The applicants herein came to know later on about the dismissal of
    the suit and upon advise, they had preferred First Appeal before the
    District Court, Vadodara, along with delay condonation application,
    as there was delay of about 400 days in preferring the First Appeal.
    The District Court, Vadodara was pleased to dismiss the Delay
    Condonation Application No. 189 of 2023 by its order dated
    09.05.2024, observing that, the valuation of the property is about
    Rs.5 crores, which is beyond the jurisdiction of the district Court and
    on this technical issue, the application was not entertained.


(iv) The applicants upon advise, filed First Appeal before this Court
    along with an application for condonation of delay, inter-alia, stating
    that, there was professional misconduct on the part of concerned
    Advocate, as despite of payment of court fees to him, he did not

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     purchase the requisite stamps, as a result, the suit came to be
     dismissed by the Court; that, they were not aware about the passing
     of the order by the court concerned and thereafter, preferred a first
     appeal before the District Court in a good faith, however, on
     technical issue of jurisdiction, the time was consumed in pursuing
     the litigation and therefore, the first part of delay i.e. from filing of
     the application till decision of the District Court, required to be
     excluded. So far as, delay caused in preferring First Appeal before
     High Court is concerned, it is stated that, the time was consumed in
     obtaining the necessary certified copies from the concerned court as
     well as in arranging advocate fees. Thus, having regard to the
     peculiar facts of the case, it is submitted that, there was delay of 10
     months in preferring the First Appeal before this Court and having
     regard to the fault on the part of the advocate, it cannot be said that,
     the delay was deliberate and throughout the applicants were
     negligent in pursing the litigation.


3.   We have heard learned counsel Mr. Vedant D. Gaikwad and Mr.
     Rushabh Shah for the respective parties.


4.   Mr. Gaikwad, learned advocate has submitted that, from 11.05.2022
     to 09.08.2024, the time spent for pursing the remedy before the
     wrong forum can be required to be excluded as per Section 14 of the
     Limitation Act. The second part of the delay of 10 months can be
     liberally construed because, the time spent in collecting funds as
     well as obtaining certified copies etc. In such circumstances, he
     would urge that, the applicants are innocent and they were unaware
     about the intention of the concerned advocate, who failed to submit

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     court fees despite of full payment made to him. The trial Court while
     dismissing the plaint, did not have served the notice upon the
     applicants. The notice was served upon the advocate concerned, who
     was at fault and on the same day, in absence of applicants, the plaint
     came to be dismissed. Thus, on merits, there are chances in
     succeeding the Appeal and therefore, the reasons set forth for the
     delay are sufficient to condone and same may be liberally construed
     to do substantial justice.


5.   On the other hand, opposing the contentions, learned counsel Mr.
     Rushabh Shah appearing for respondent nos. 9 to 12, has submitted
     that, in the facts of the present case, the applicants found to be
     negligent and they have not acted diligently and therefore, the
     grounds averred in the application are not sufficient and convincing
     to condone the delay. By relying the judgment of Rajneesh Kumar
     and Anr Vs. Ved Prakash (2024 SCC On-line SC 3380), it is
     submitted that the applicants were aware about the conduct of the
     advocate and despite of this, they failed to submit requisite court
     fees and therefore, carelessness of the advocate, cannot be a ground
     to condone the delay. In such circumstances, Mr. Shah, by referring
     the contentions raised in his written submission, has stated that, the
     application has no merits and same may be dismissed with costs.


6.   We have heard at length learned counsel for the respective parties
     and perused the impugned order and other case records.


7.   In the facts of the present case, the suit being Civil Suit No. 234 of
     2020 filed through power of attorney holder and counsel Mr. Patel,

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     who had institute the suit, remained careless in submitting the
     requisite court fees despite of full payment being made to him.
     Before the trial Court, while dismissing the plaint for insufficient
     court fees, the notice upon the advocate was served and on the same
     day, the plaint came to be dismissed. Being aggrieved and
     dissatisfied with the dismissal of the plaint, the appeal before the
     District Court along with Delay Condonation Application was
     preferred. Thus, so far part one is concerned, in our opinion, the
     applicants have chosen a wrong forum for preferring the First
     Appeal and therefore, whatever delay caused would required to be
     excluded as per Section 14 of the Limitation Act.


8.   So far as delay caused in preferring Appeal before this Court is
     concerned, we proceed to examine the cause shown by the
     applicants regarding filing of present application with the delay of
     10 months. The Supreme Court and this High Court, has time and
     again held that, in considering the application for condonation of
     delay, court ought to construe it liberally and for condonation of
     delay, the length of delay is no matter, the acceptability of the
     explanation is the only criteria. In the facts of the present case, from
     the date of filing of the suit, the applicants made full payment of
     court fees to his advocate. The advocate was careless and did not
     inform the applicants about the non-payment of court fees. The trial
     Court should have served the notice upon the applicants herein. The
     service to the advocate, would not fruitful in the present case,
     because, he did not intend to pay the court fees. The plaint came to
     be dismissed on the same day. In such circumstances, throughout the



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        proceedings, the applicants were acted in good faith. In such
        circumstances, there was no lethargic approach on the part of the
        applicants in pursing the litigation. Thus, in the background of the
        peculiar facts, as discussed hereinabove, the applicants should be
        given an opportunity to contest the matter on merits.


9.      For the reasons recorded, this Court is of the view that delay caused
        in preferring First Appeal is hereby condoned. Accordingly,
        application is allowed. No order as to costs.



                                                                                            (ILESH J. VORA,J)



                                                                                         (R. T. VACHHANI, J)
P.S. JOSHI


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 30/06/2026 14:48:41




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