Bombay High Court

UTTAM AGATRAO BHOSALE AND ORSversusSAHAJI AGATARAO BHOSALE

Disposal: Disposed Off

Holding

The High Court held that the delay was sufficiently explained, the District Court's discretion was not perverse, but the cost was inadequate and was enhanced to Rs 12,000, with restoration of the appeal subject to payment of the enhanced cost.

Summary

The respondents filed a partition suit which was dismissed, and their subsequent appeal was dismissed for default. They later filed a Civil Miscellaneous Application seeking condonation of a 10‑month, 27‑day delay in applying for restoration of that appeal. The District Court condoned the delay, restored the appeal and imposed a cost of Rs 2,000. The applicants challenged this order by a civil revision under Section 115 CPC, arguing lack of sufficient cause. The High Court examined the principles of condonation, found no mala fides and held the explanation sufficient, but enhanced the cost to Rs 12,000 and made payment of the enhanced cost a condition precedent, directing the District Court to restore the appeal and dispose of it expeditiously.

Issues considered

Whether the delay of 10 months and 27 days in filing the application for restoration of the appeal can be condoned under Section 5 of the Limitation Act, 1963.
Whether the District Court exercised its discretion properly in condoning the delay and imposing costs.
Whether the cost of Rs 2,000 imposed by the District Court is adequate.

Legislation cited

Code of Civil Procedure, 1908 — s. 115
Limitation Act, 1963 — s. 5

Subjects

partition suit
appeal restoration
condonation of delay
Limitation Act
Civil Revision
senior citizens
cost enhancement
CPC

Judgment

42-CRA-206-2025.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 206 OF 2025

1. Mr. Uttam Agatrao Bhosale,
Age; 75 years, Occ. Farming,
R/at. Nerle, Tal. Karmala
District Solapur.

2. Mr. Somnath Agatrao Bhosale,
Age 65 years, Occ. Farming,
R/at. Nerle, Tal. Karmala,
District Solapur.

3. Mr. Vilas Uttam Bhosale,
Age 40 years, Occ. Farming,
R/at Nerle, Tal. Karmala, ...Applicants
District Solapur. (Original Defendant
No. 1, 2 and 6)

Versus

1. Mr. Sahaji Agatrao Bhosale,
Age 55 years, Occ. Farming,
R/at. Nerle, Tal. Karmala,
District Solapur. ...Respondent
(Original Plaintiff)

Mr. Bhushan Jadhav a/w Siddheshwari Chawan i/b Rajendra
Ambhule, Advocate for the Applicants.
Mr. Shardul Diwan, Advocate for the Respondent.

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CORAM : ASHWIN D. BHOBE, J.
DATE : 27th August, 2026.
Oral Judgement :

1. Heard Mr. Bhushan Jadhav, learned Advocate for the Applicants

and Mr. Shardul Diwan, learned Advocate for the Respondent.

2. By this Civil Revision Application under Section 115 of the Code

of Civil Procedure, 1908 (“C.P.C.”), the Applicants assail the Order

dated 20.12.2024 passed by the District Judge-1, Barshi (“District

Court”), which allowed the Civil Miscellaneous Application No. 113 of

2023, filed by the Respondent, thereby condoning the delay in filing an

Application seeking the Restoration of the Civil Appeal No. 78 of 2017,

subject to payment of costs of Rs. 2000/- by the Respondent

(“impugned order”).

3. In brief, the facts of the case are that the Respondent (Plaintiff)

instituted Regular Civil Suit No. 152 of 2009 for partition before the

Civil Judge, Junior Division, Karmala, Solapur (“Trial Court”), seeking

partition of the suit properties. The Defendants in the suit are the family

members of the Respondent.

4. By Judgment and Decree dated 29.05.2017, the Regular Civil Suit

No. 152 of 2009 was dismissed. Dissatisfied with the dismissal of the
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Regular Civil Suit No. 152 of 2009, the Respondent filed a Regular Civil

Appeal No. 78 of 2017 before the District Court.

5. The Regular Civil Appeal No. 78 of 2017, filed by the Respondent,

was dismissed for default due to the non-appearance of the Respondent

and his Advocate.

6. Civil Miscellaneous Application No. 113 of 2023 was filed by the

Respondent seeking condonation of a delay of 10 months and 27 days

in filing an Application for the restoration of Regular Civil Appeal No.

78 of 2017.

7. By the impugned order, the District Court, for the reasons

recorded therein, deemed it fit and proper to exercise discretion in

favour of the Respondent by condoning the delay of 10 months and 27

days and restoring Regular Civil Appeal No. 78 of 2017.

8. The Applicants (Defendant Nos. 1, 2 and 6), aggrieved by the

impugned order, are before this Court.

9. Mr. Bhushan Jadhav, learned Advocate for the Applicants,

submits that Civil Miscellaneous Application No. 113 of 2023 fails to

disclose any cause, let alone sufficient cause, for seeking indulgence

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under Section 5 of the Limitation Act, 1963. He further submits that in

the absence of a proper explanation, the Application should have been

dismissed by the District Court.

10. Mr. Shardul Diwan, learned Advocate for the Respondent, states

that the Respondent has filed two (2) applications, namely, an

application seeking condonation of delay in filing the restoration

application (Civil Miscellaneous Application No. 113 of 2023) and a

separate application seeking restoration of Regular Civil Appeal No. 78

of 2017. He submits that the reasons for seeking the reliefs in both

applications are the same. He further submits that the impugned order

has rejected the application seeking condonation of delay in filing the

restoration, whereas the other application is pending consideration.

11. Mr. Shardul Diwan, learned Advocate for the Respondent,

submits that it was a bona fide mistake on the part of the Respondent as

well as his Advocate that the date fixed in Regular Civil Appeal No. 78

of 2017 was missed, resulting in non-appearance. He submits that the

Respondent is earnestly interested in pursuing the challenge to the

decree in Regular Civil Appeal No. 78 of 2017 and had at no point in

time any intention to abstain from appearing before the District Court.

He submits that the delay in filing the Application for restoration of

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Regular Civil Appeal No. 78 of 2017 is bona fide. He submits that the

cost imposed by the impugned order has been paid by the Respondent

to the Applicants and the Applicants have received the said costs.

12. Perused the records placed in the file of this Application, with the

assistance of the learned Advocates for the parties.

13. A perusal of the reply dated 21.02.2024, filed by the Applicants

before the District Court in opposition to the Civil Miscellaneous

Application No. 113 of 2023 indicates that the Applicants do not allege

malafide against the Respondent.

14. In response to a query to Mr. Bhushan Jadhav, learned Advocate

for the Applicants, to point out any malafide allegations in the reply or,

for that matter, in this Revision Application in the context of the

delay/reasons given by the Respondent for seeking condonation of

delay, he answers in the negative.

15. In the absence of mala fides in the reply, i.e. any ground or

allegation that the Respondent would have gained by delaying the filing

of the Civil Miscellaneous Application No. 113 of 2023, there is no

reason to disbelieve the Respondent's bonafides in the cause shown for

seeking condonation.
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16. The condition precedent for condonation of delay is the existence

of sufficient cause. The Respondent has given reasons for the delay in

filing the Civil Miscellaneous Application No. 113 of 2023. The cause

shown by the Respondent in Civil Miscellaneous Application No. 113 of

2023 falls within the expression ‘sufficient cause’. Moreover, the

explanation given by the Respondent does not appear to be concocted

or fanciful. Acceptance of the explanation given for delay should be the

rule and refusal an exception, when no negligence, inaction, or want of

bonafides can be attributed to the defaulting party.

17. In Esha Bhattacharjee v. Raghunathpur Nafar Academy 1, in

paragraph 21 the Hon’ble Supreme Court has observed as under :-

21. From the aforesaid authorities the principles that can broadly
be culled out are:

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
1 (2013) 12 SCC 649

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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 of short duration or few days, for to the former doctrine of
prejudice is attracted whereas to the latter it may.

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.

21.11. (xi) It is to be borne in mind that no one gets away with
fraud, misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised
and the approach should be based on the paradigm of judicial
discretion which is founded on objective reasoning and not on
individual perception.

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21.13. (xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.

18. The District Court has accepted the explanation in Civil

Miscellaneous Application No. 113 of 2023 as sufficient, thereby

resulting in positive exercise of discretion. The delay was condoned

subject to payment of costs. The Applicants have received the costs of

Rs. 2,000/- awarded by the impugned order from the Respondent

without demur. Page No. 79 of this Application records the following

endorsement :-

“Received cost of Rs. 2,000/-

(Rupees Two Thousand only)
sd/-
24/12/2024
Adv. For Non applicant”

19. In N. Balakrishnan v. M. Krishnamurthy2, paragraphs 9 to 14, the

Hon’ble Supreme Court has observed as under :-

“9. It is axiomatic that condonation of delay is a matter of
discretion of the court. Section 5 of the Limitation Act does not
say that such discretion can be exercised only if the delay is
within a certain limit. Length of delay is no matter, acceptability
of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to a want of acceptable
2 (1998) 7 SCC 123

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explanation whereas in certain other cases, delay of a very long
range can be condoned as the explanation thereof is satisfactory.
Once the court accepts the explanation as sufficient, it is the
result of positive exercise of discretion and normally the superior
court should not disturb such finding, much less in revisional
jurisdiction, unless the exercise of discretion was on wholly
untenable grounds or arbitrary or perverse. But it is a different
matter when the first court refuses to condone the delay. In such
cases, the superior court would be free to consider the cause
shown for the delay afresh and it is open to such superior court
to come to its own finding even untrammelled by the conclusion
of the lower court.

10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice. The time-
limit fixed for approaching the court in different situations is not
because on the expiry of such time a bad cause would transform
into a good cause.

11. Rules of limitation are not meant to destroy the rights of
parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. The object of
providing a legal remedy is to repair the damage caused by
reason of legal injury. The law of limitation fixes a lifespan for
such legal remedy for the redress of the legal injury so suffered.
Time is precious and wasted time would never revisit. During the
efflux of time, newer causes would sprout up necessitating
newer persons to seek legal remedy by approaching the courts.
So a lifespan must be fixed for each remedy. Unending period for
launching the remedy may lead to unending uncertainty and
consequential anarchy. The law of limitation is thus founded on
public policy. It is enshrined in the maxim interest reipublicae up
sit finis litium (it is for the general welfare that a period be put
to litigation). Rules of limitation are not meant to destroy the
rights of the parties. They are meant to see that parties do not
resort to dilatory tactics but seek their remedy promptly. The
idea is that every legal remedy must be kept alive for a
legislatively fixed period of time.

12. A court knows that refusal to condone delay would result
in foreclosing a suitor from putting forth his cause. There is no
presumption that delay in approaching the court is always
deliberate. This Court has held that the words “sufficient cause”
under Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice vide Shakuntala
Devi Jain v. Kuntal Kumari [AIR 1969 SC 575 : (1969) 1 SCR
1006] and State of W.B. v. Administrator, Howrah Municipality
[(1972) 1 SCC 366 : AIR 1972 SC 749] .

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13. It must be remembered that in every case of delay, there
can be some lapse on the part of the litigant concerned. That
alone is not enough to turn down his plea and to shut the door
against him. If the explanation does not smack of mala fides or it
is not put forth as part of a dilatory strategy, the court must show
utmost consideration to the suitor. But when there is reasonable
ground to think that the delay was occasioned by the party
deliberately to gain time, then the court should lean against
acceptance of the explanation. While condoning the delay, the
court should not forget the opposite party altogether. It must be
borne in mind that he is a loser and he too would have incurred
quite large litigation expenses. It would be a salutary guideline
that when courts condone the delay due to laches on the part of
the applicant, the court shall compensate the opposite party for
his loss.

14. In this case, explanation for the delay set up by the
appellant was found satisfactory to the trial court in the exercise
of its discretion and the High Court went wrong in upsetting the
finding, more so when the High Court was exercising revisional
jurisdiction. Nonetheless, the respondent must be compensated
particularly because the appellant has secured a sum of Rs fifty
thousand from the delinquent-advocate through the Consumer
Disputes Redressal Forum. We, therefore, allow these appeals
and set aside the impugned order by restoring the order passed
by the trial court but on a condition that the appellant shall pay
a sum of rupees ten thousand to the respondent (or deposit it in
this Court) within one month from this date.

20. I do not find any perversity in the impugned order. However,

given the delay of 10 months and 27 days in filing the Application, the

cost of Rs. 2,000/- is inadequate. In view of the same, the said cost is

enhanced to Rs. 12,000/-.

21. Mr. Shardul Diwan, learned Advocate for the Respondent, states

that the enhanced amount of Rs. 10,000/- shall be deposited with the

District Court in Civil Miscellaneous Application No. 113 of 2023 on or

before 25.09.2026. Payment of costs is a condition precedent.

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22. If the amount of Rs. 10,000/- is not deposited with the District

Court in Civil Miscellaneous Application No. 113 of 2023 on or before

25.09.2026, this Civil Revision Application shall stand allowed,

consequently, the impugned order dated 20.12.2024 passed in Civil

Miscellaneous Application No. 113 of 2023 shall stand set aside, with

costs of Rs. 25,000/- payable by the Respondent to the Applicant.

23. Mr. Shardul Diwan, learned Advocate for the Respondent, has

stated that the reasons for seeking restoration of the Regular Civil

Appeal No. 78 of 2017 are the same as those in Civil Miscellaneous

Application No. 113 of 2023. Given that the Civil Miscellaneous

Application No. 113 of 2023 sufficiently explained the delay, perhaps a

separate application for the restoration of the Regular Civil Appeal No.

78 of 2017 was not necessary.

24. Mr. Bhushan Jadhav, learned Advocate for the Applicants and Mr.

Shardul Diwan, learned Advocate for the Respondent, submit that the

parties to Regular Civil Appeal No. 78 of 2017 are senior citizens, some

of whom are over 75 years of age and therefore request that the District

Court be directed to dispose of the said appeal at the earliest.

25. In view of the request made by Mr. Bhushan Jadhav and Mr.

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Shardul Diwan to avoid further delay and as the reasons given by the

Respondent for seeking restoration of Regular Civil Appeal No. 78 of

2017 are similar to those in Civil Miscellaneous Application No. 113 of

2023, as submitted by Mr. Shardul Diwan and not contested by Mr.

Bhushan Jadhav, learned Advocate for the Applicants, the application

seeking restoration pending before the District Court is allowed.

Consequently, Regular Civil Appeal No. 78 of 2017 shall stand restored

to the file of the District Court, subject to paragraphs 20, 21 and 22

hereinabove.

26. Considering the said facts, i.e. the parties to the Regular Civil

Appeal No. 78 of 2017 being senior citizens, the subject matter of the

proceedings being a suit for partition and the Appeal being of the year

2017, the District Court is requested to make an endeavor to dispose of

the Regular Civil Appeal No. 78 of 2017 expeditiously, on its own

merits and in accordance with law, at any rate, within a period of six

(6) months from the date of the first hearing fixed in the Regular Civil

Appeal No. 78 of 2017, after 25.09.2026 (i.e. the date fixed for the

Respondent to comply with the payment of costs). Payment of costs is a

condition precedent.

27. Mr. Bhushan Jadhav, learned Advocate for the Applicants and Mr.

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Shardul Diwan, learned Advocate for the Respondent, state that the

parties shall co-operate with the District Court in the early disposal of

the Regular Civil Appeal No. 78 of 2017. Statement accepted.

28. Civil Revision Application No. 206 of 2025 is disposed of in the

above terms.

(ASHWIN D. BHOBE, J.)

Digitally
signed by
ARJUN
ARJUN KRISHNA
KRISHNA RODGE
RODGE Date:
2026.09.07
18:46:06
+0530

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