Supreme Court of India
H. GURUSWAMY & ORS.versusA. KRISHNAIAH SINCE DECEASED BY LRS.
- Citation
- 2025 INSC 53
- Decided
- 8 January 2025
- Disposal
- Appeal(s) allowed
Holding
The High Court erred in condoning the six‑year delay; the trial court’s order rejecting the recall application stands.
Summary
The appeal arose from a High Court order that condoned a six‑year delay in filing an application for recall under Order 9 Rule 13 of the CPC, overturning a trial court decision that had rejected the application. The respondents had sought to revive a suit originally filed in 1977, which had been abated after repeated defaults and delays. The trial court had found the delay unreasonable, noting that the respondents had been aware of the certified copy of the order in 2005 yet filed the recall application only in 2006. The High Court, however, set aside the trial court’s order without addressing the reasons for the delay. The Supreme Court held that the High Court erred by ignoring the substantial delay and the principles of limitation, emphasizing that liberal or substantial‑justice approaches cannot override clear statutory limitation rules. Consequently, the Supreme Court restored the trial court’s order and allowed the appeal.
Issues considered
- Whether the High Court erred in condoning a six‑year delay in filing an application for recall under Order 9 Rule 13 CPC.
- Whether the doctrine of limitation can be relaxed on the ground of substantial justice in the present facts.
- Whether the court must first ascertain the bona fides of the explanation for delay before considering merits.
Legislation cited
- Code of Civil Procedure, 1908s. Order 9 Rule 13
Headnote
Issue for Consideration Order dated 05.08.2014 passed by the trial court rejecting application filed under Order 9 Rule 13 CPC came to be set aside by the High Court, which was challenged in the present appeal; The appellants submitted that there was a delay of six years (about 2200 days) in itself; and the High Court proceeded to condone the delay of about 2200 days without adverting to any of the reasons assigned by the Trial Court while rejecting application filed for recall. Headnotes† Limitation – Rules of limitation are meant to see that the parties do not
Subjects
Application filed under Order 9 Rule 13 CPCDelay of six years in filing application for recallCondonation of delayRules of limitationDilatory tacticsPrinciples of sound public policyPrinciples of equitySubstantial justice
Judgment
[2025] 1 S.C.R. 764 : 2025 INSC 53
H. Guruswamy & Ors.
v.
A. Krishnaiah Since Deceased By LRs.
(Civil Appeal No. 317 of 2025)
08 January 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Order dated 05.08.2014 passed by the trial court rejecting
application filed under Order 9 Rule 13 CPC came to be set aside
by the High Court, which was challenged in the present appeal;
The appellants submitted that there was a delay of six years (about
2200 days) in filing the application for recall itself; and the High
Court proceeded to condone the delay of about 2200 days without
adverting to any of the reasons assigned by the Trial Court while
rejecting application filed for recall.
Headnotes†
Limitation – Rules of limitation are meant to see that the
parties do not resort to dilatory tactics but seek their remedy
promptly – They are based on principles of sound public policy
and principles of equity:
Held: 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 – The High Court exhibited complete absence of
judicial conscience and restraints, which a judge is expected to
maintain while adjudicating a lis between the parties – 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 – 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
[2025] 1 S.C.R. 765
H. Guruswamy & Ors. v. A. Krishnaiah Since Deceased By LRs.
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 – 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 – The
impugned order passed by the High Court is set aside and that of
the Trial Court dated 05.08.2014 passed in Misc. No. 223 of 2006
is hereby restored. [Paras 13, 14, 15, 16, 17, 18]
List of Acts
Code of Civil Procedure, 1908 - Order 9 Rule 13.
List of Keywords
Application filed under Order 9 Rule 13 CPC; Delay of six years in
filing application for recall; Condonation of delay; Rules of limitation;
Dilatory tactics; Principles of sound public policy; Principles of equity.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 317 of 2025
From the Judgment and Order dated 30.01.2020 of the High Court
of Karnataka at Bengaluru in MFA No. 7220 of 2014
Appearances for Parties
Anand Sanjay M Nuli, Sr. Adv., Suraj Kaushik, Shivraj Singh,
Abhishekh Singh (for M/s. Nuli & Nuli), Advs. for the Appellants.
Rajesh Mahale, Sr. Adv., Parikshith Maliye, Ms. Anuradha Bhat,
Harisha S. R., Advs. for the Respondents.
766 [2025] 1 S.C.R.
Supreme Court Reports
Judgment / Order of the Supreme Court
Order
1. This appeal arises from the judgment and order passed by the High
Court of Karnataka at Bengaluru dated 30.01.2020 in Misc. First
Appeal No. 7220 of 2014 filed under Order 43 Rule 1(d) of the Civil
Procedure Code, 1908 (for short, “the CPC”) by which the order
dated 05.08.2014 passed in Misc. Case No. 223 of 2006 on the
file of the XIV Additional City Civil Judge, Bengaluru rejecting the
application filed under Order 9 Rule 13 CPC came to be set aside
and thereby the appeal was allowed.
2. The facts giving rise to this appeal may be summarised as under:
a. The suit schedule property bearing Sy. No. 1/11 situated at
Byrasandra, Bangalore, Karnataka measuring 45 yards East
to West and 55 yards North to South was purchased by one
Venkatappa in the year 1916. Thereafter, the said Venkatappa
sold a portion of the suit property and retained the balance
portion measuring 45 yards East to West and 27.5 yards North
to South. Vide a registered family partition, the suit schedule
property came to be divided between Venkatappa and Muniga
@ Chikonu (Brother of Venkatappa) wherein Venkatappa had
received 29 Ankanas along with 1/3rd share and Chikonu had
received 10 Ankanas of house along with 2/3rd share.
b. A suit for injunction being O.S No.615/1960 came to be filed
by Venkatappa against his family members which came to be
subsequently withdrawn on or about 14.06.1965.
c. Initially one C.R. Narayana Reddy had filed a suit for specific
performance against the appellants herein being O.S. No.
33/1971 with respect to the land along with a house in
Byrasandra Village before the Court of the Civil Judge, Civil
Station, Bangalore which came to be disposed of vide Judgment
and Order dated 30.08.1971 with a direction to the appellants
herein to refund the earnest amount that had been paid to them.
d. The deceased Respondent No.1 herein namely Sri. A.Krishnaiah
had impleaded himself as Defendant No. 14 in O.S No.33/1971
claiming to have purchased the suit property from the Defendants
No.3 to 13 respectively in O.S. No.33/1971. The Civil Court had
recorded a categorical finding that the conduct of the deceased
[2025] 1 S.C.R. 767
H. Guruswamy & Ors. v. A. Krishnaiah Since Deceased By LRs.
Respondent No.1 did not seem to be bona fide and that the
sale in his favour was hit by the doctrine of lis pendens and
that the deceased Respondent No. 1 did not seem to be a bona
fide purchaser and was not entitled to any relief with regard to
the suit property.
e. Thereafter on the very same cause of action, the deceased
Respondent No. 1 filed O.S. No. 104/1972 seeking similar reliefs
against the appellants. The said suit came to be dismissed on
merits vide Judgment and Order dated 08.12.1975
f. Despite failing in two rounds of proceedings and not challenging
the Orders passed in O.S. No.33/1971 and O.S No.104/1972,
the deceased Respondent proceeded to file yet one another suit
for possession and other reliefs by way of O.S. No.603/1977
before the Court of the Civil Judge, Bangalore City. The said
suit came to be eventually renumbered as O.S. No. 1833/1980.
g. The O.S. No.1833/1980 came to be dismissed on the first
occasion for default in the year 1983. In lieu of the same, the
Respondents herein had filed Misc. Petition No.1063/1984
seeking to restore the said suit which came to be allowed in the
year 1984. Thereafter, the Defendant No.4 in O.S. No.1833/1980
namely Shri. Nagaraja passed away on 04.12.1999. The
Respondents having come to know of the same and having
been granted sufficient opportunities on 06.03.2000, 18.07.2000
and 22.08.2000 respectively, failed to bring the legal heirs of
the Defendant No.4 on record as a consequence of which,
the O.S. No.1833/1980 came to be dismissed as having stood
abated vide Order dated 22.08.2000.
h. The Respondents herein/Plaintiffs in their application for
recall dated 06.03.2006 stated that the wife of the Deceased
Respondent No. 1 namely Smt. Jayalakshmi G. who is one
of the Respondents/Plaintiffs had been suffering from some
ailment and had to be admitted in hospital on 09.02.2000. She
also had to undergo Angioplasty on 27.09.2003 and that the
Respondents came to receive the certified copy of the Order
dated 22.08.2000 on 26.08.2005. However, thereafter, the
Respondents proceeded to file applications under Order 22
Rule 4, Order 32 Rule 1 & 2 and Order 22 Rule 9 respectively
before the Trial Court in O.S. No. 1833/1980 seeking to set aside
the abatement and bring the legal heirs on record. However, the
768 [2025] 1 S.C.R.
Supreme Court Reports
same came to be dismissed by way of Order dated 16.11.2005
with liberty to the Respondents to file an application for recall.
i. Despite the above, the Respondents proceeded to challenge
the Order dated 16.11.2005 before the High Court, in W.P
No.26660/2005 which came to be dismissed as well.
j. It is only thereafter on 06.03.2006 that the Respondents
proceeded to file an application for recall in Misc. Case
No.223/2006 before the Trial Court. The Trial Court vide a
detailed Order dated 05.08.2014 dismissed the Misc. Case
No.223/2006 holding as under:
a) that the rights of the deceased Respondent No.1 had
already been decided much prior in the suit for specific
performance in O.S. No.33/1971 itself wherein it had
been held that the deceased Respondent No. 1 was not
a bona fide purchaser and that a similar suit in O.S. No.
104/1972 which arose out of the same cause of action
had also been dismissed on merits.
b) that all the Respondents are educated and there was no
impediment for the Respondents to obtain the certified
copies in O.S. No. 1833/1980 at the earliest point of time.
c) that the Respondents had failed to assign any sufficient
cause for not filing the application till 2006 and moreover,
the trial court noted that the cause shown by the
Respondents also appeared to be doubtful. Furthermore,
it was held that there is an inordinate delay of 6 years in
filing the application for recall and the cause shown was
insufficient.
d) that the Respondents despite having obtained the certified
copies on 26.08.2005, had only filed the Misc. No.223/2006
on 03.06.2006 and the Respondents had failed to explain
their delay in filing the petition.
e) that the suit itself is hit by res judicata as the matter in the
suit in the present suit and that of O.S. No.33/1971 were
one and the same wherein there were specific findings
that the Deceased Respondent No. 1 was not a bona
fide purchaser and was not entitled to any relief. The
court also observed that the present application for recall
was barred by limitation and furthermore, the suit in O.S.
[2025] 1 S.C.R. 769
H. Guruswamy & Ors. v. A. Krishnaiah Since Deceased By LRs.
No.104/ 1972 had been dismissed on merits as well. That
the Respondents had not approached the Court with clean
hands and had abused the process of law.
3. Being aggrieved with the above, the Respondents challenged the
Order dated 05.08.2014 before the High Court in W.P No.7220/2014
wherein the High Court allowed the Writ Petition thereby condoning
the delay of about 2200 days.
4. In such circumstances referred to above, the appellants are here
before this Court with the present appeal.
5. Mr. Anand Sanjay M. Nuli, the learned Senior counsel appearing for
the appellants submitted that the High Court proceeded to condone
the delay of about 2200 days without adverting to any of the reasons
assigned by the Trial Court while rejecting application filed for recall.
6. He submitted that the High Court by its impugned order could be
said to have proceeded to revive a suit which had been instituted in
the year 1977 i.e., a suit which had been instituted about 48 years
ago and is still at the stage of leading evidence.
7. He submitted that there is a delay of six years in filing the application
for recall itself. He pointed out that this is the second instance that
the suit came to be dismissed due to negligence and callous attitude
on the part of the respondents.
8. In such circumstances referred to above, he prayed that there being
merit in his appeal, the same may be allowed and the impugned
judgment and order passed by the High Court be set aside.
9. On the other hand, Mr. Rajesh Mahale, the learned Senior counsel
appearing for the respondents submitted that no error not to speak
of any error of law could be said to have been committed by the
High Court in passing the impugned order. He would submit that all
that the High court has done is to condone the delay with a view to
do substantial justice between the parties.
10. In such circumstances referred to above, he prayed that there being
no merit in this appeal, the same may be dismissed.
11. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment and order.
770 [2025] 1 S.C.R.
Supreme Court Reports
12. We take notice of the following glaring features of the matter:
(i) The original suit is of the year 1977. The said suit came to be
re-numbered as Original Suit No. 1833 of 1980. It has been 48
years that the suit is pending for recording of evidence.
(ii) The Original Suit No. 1833 of 1980 came to be dismissed for
default in the year 1983. The same was restored in 1984.
(iii) The defendant No. 4 in Original Suit No. 1833 of 1980, namely,
Nagaraja passed away on 4.12.1999.
(iv) The respondents herein were granted opportunities on 6.03.2000,
18.7.2000 and 22.8.2000 respectively to bring the legal heirs
of the defendant No. 4 on record. Having failed to do so the
suit ultimately came to be dismissed as having stood abated.
(v) The rights of the deceased respondent No. 1 had already been
decided in the suit filed for specific performance i.e. the Original
Suit No. 33 of 1971.
(vi) The respondents having obtained the certified copies on
26.8.2005 preferred the Misc. Case No. 223 of 2006 on
06.03.2006.
(vii) Indisputably, there is a delay of 6 years (about 2200 days) in
filing the application for recall itself.
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.
16. The length of the delay is definitely a relevant matter which the court
must take into consideration while considering whether the delay
[2025] 1 S.C.R. 771
H. Guruswamy & Ors. v. A. Krishnaiah Since Deceased By LRs.
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.
18. For all the foregoing reasons this appeal succeeds and is hereby
allowed.
19. The impugned order passed by the High Court is set aside and that
of the Trial Court dated 05.08.2014 passed in Misc. No. 223 of 2006
is hereby restored.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Bibhuti Bhushan Bose
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