Bombay High Court

SHOBHA SHIVAJI SHINDE AND ORS.versusVISHNU VITTHAL GURAV DECEASED THR. LRS SUREKHA V GURAV

Disposal: Allowed

Holding

The Court allowed the condonation of delay under Order IX Rule 9 CPC, finding no mala fides and correcting the trial court's error in limitation calculation, subject to payment of costs.

Summary

The petitioners filed a civil suit in 2003 seeking a mandatory injunction to compel the execution of a reconveyance deed and related reliefs concerning a mortgaged land. The suit was dismissed for default in July 2009 under Order IX Rule 3 of the CPC. After more than fourteen years, they filed a miscellaneous application in 2023 seeking condonation of the delay under Order IX Rule 9, which the trial court rejected. The petitioners challenged that order by filing a writ petition, arguing that the delay was not intentional and that no mala fides existed. The High Court held that the trial court miscalculated the limitation period, failed to consider the Supreme Court precedent, and therefore allowed the condonation of delay subject to a cost of Rs. 20,000 payable to the respondents. The writ petition was allowed, the miscellaneous application was permitted, and the parties were directed to appear for expeditious disposal of the suit.

Issues considered

Whether the delay of 14 years 1 month and 13 days in filing an application under Order IX Rule 9 CPC can be condoned.
Whether the trial court erred in calculating the limitation period for the condonation application.
Whether there is any mala fides on the part of the petitioners justifying the denial of condonation.
Whether costs should be imposed as a condition precedent to the grant of relief.

Legislation cited

Code of Civil Procedure, 1908 — s. Order IX Rule 3, Order IX Rule 9

Subjects

condonation of delay
limitation period
Order IX CPC
mandatory injunction
reconveyance
mortgage
default judgment
costs
writ petition

Judgment

2026:BHC-KOL:7704
68 WP 2066 OF 2026.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION

68 WRIT PETITION NO. 2066 OF 2026

SHOBHA SHIVAJI SHINDE AND ORS.
VERSUS
VISHNU VITTHAL GURAV DECEASED THR. LRS SUREKHA V GURAV
...
Advocate for Petitioner : Mr. Patil Kalpesh Uttam
Advocate for Respondent nos. 1A to 1D : Mr. Avesh Ghadge a/w Mr. Avesh
A. Ghadge
...
CORAM : SHAILESH P. BRAHME, J.

DATE : 17.08.2026

PER COURT :

Heard both sides.

2. The petitioners take exception to the order dated 21.01.2026 passed
in Civil Misc. Application No. 133/2023, rejecting application for
condonation of delay of 14 years 1 month and 13 days in filing application
Under Order IX Rule 9 of the Code of Civil Procedure.

3. Learned counsel Mr. Patil for the petitioners submits that the delay is
not intentional. The grounds for condonation of delay are specifically
mentioned in the application, which is supported by oral evidence. The
explanation should have been accepted by the Court. It is submitted that
the petitioner no. 2 was also, at the relevant time, working outside of the
village. It is further submitted that the petitioners are ready to abide by any
conditions, but the opportunity be given to them to prosecute the suit on its
own merits.

4. Per contra, learned counsel for the respondents would advert my
attention to the cross-examination of petitioner no. 1 to show that she was

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looking after the proceedings, and lapses are attributable to her. It is
contended that false reasons are assigned for condoning the inordinate
delay. The application is filed in casual manner. The advocate concerned
died in 2015 but still no endeavour is made to know the status from 2009 to
2015. The petitioners failed to prosecute the suit diligently. It is further
contended that respondent is still in possession of the suit land.

5. The parties are litigating in Regular Civil Suit No. 108/2003, which is
filed by the petitioners for mandatory injunction of executing deed of
reconveyance, redeeming the mortgage, declaration and injunction.
Alternatively, relief of possession is also solicited. The petitioners failed to
lead the evidence despite granting chances.. It was dismissed for default
vide Order dated 14.07.2009 under Order IX Rule 3 of the Code of Civil
Procedure. They preferred Misc. Civil Application No. 133/2023 along with
separate application Under Order IX Rule 9 of the C.P.C. on 26.09.2023
seeking condonation of delay of 14 years 1 month and 13 days. It is
contested by the respondent successfully.

6. The suit preferred by the petitioners was emanating from transaction
of mortgage of the suit land for Rs. 5000/-, which was witnessed by
mortgage-deed executed on 19.12.1985. The mortgaged amount is stated to
have been repaid and possession is also stated to have been received by the
petitioners. But the cause of action is refusal on the part of the respondent
to execute the document of reconveyance. It is specific claim of the
petitioners that they are in possession of the suit land, albeit the respondent
has rival claim for possession.

7. I have gone through application for condonation of delay and the
deposition of petitioner No. 1. The Trial Court overlooked vital aspect of the
matter that no mala fides can be inferred from the application and material
on record. There is nothing on record to suggest that there was any oblique
motive on the part of the petitioners to cause delay and to claim restoration

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strategically. In view of law laid down by the Supreme Court in the matter
of Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and
others, reported in AIR 2002 SC 1201, I find that vital aspect of the matter
has not been gone into by the Trial Court.

8. The cross-examination of the petitioner no. 1 shows that she was
looking after the matter and she should have been more diligent. Besides
that, petitioner nos. 2 and 3 are also her family members, who should have
taken precaution in getting knowledge and status of the proceeding. The
lapses on the part of the petitioners cannot be denied. The factum of death
of lawyer is apparent. Going by the case of the petitioners that mortgaged
amount was repaid and possession was secured would be the contributing
factor for the lethargy or lapses. But equities can be adjusted by imposing
costs. The substantive rights of the parties are at stake, which need
objective scrutiny.

9. I find that the Trial Court committed another error of jurisdiction in
calculating the delay to the tune of 19 years. The period of limitation
reckons from the date when Order IX Rule 3 of the Code of Civil Procedure
is passed and not for the previous lapses. Ends of justice would be met in
imposing costs of Rs. 20,000/- to be paid to the respondent within stipulated
period.

10. Learned counsel for the petitioners has undertaken before this Court
that his clients are ready to cooperate for expeditious disposal of the trial.
I, therefore, pass following order:

ORDER

A) The writ petition is allowed.

B) Misc. Application No. 133/2023 shall stand allowed, consequently,
application for restoration of the suit also shall stand allowed on condition

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of payment of costs of Rs. 20,000/- (Rs. Twenty Thousand only) within a
period of two weeks from today, which shall be condition precedent.

C) The parties shall appear before the Court on 27.08.2026.

D) The amount of costs shall either be directly paid and receipt thereof
be submitted to the Court, or if it is deposited shall be disbursed to the
respondent.

E) The petitioner No. 1 shall file her affidavit-in-lieu of examination-in-
chief within three weeks from today and shall cooperate for expeditious
disposal of the suit.

F) The Trial Court is requested to decide the suit expeditiously.

( SHAILESH P. BRAHME, J.)

mkd/-

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