Bombay HC Sets Aside 2325-Day Delay Condonation | Says Imposing Costs No Substitute for Proving Sufficient Cause
Sanchayita Lahkar
The High Court of Bombay at Nagpur, Single Bench of Justice Mrs. Vrushali V. Joshi has set aside the order passed by the 7th District Judge, Nagpur, which had condoned a delay of 2325 days in filing a restoration application. The court held that the explanation offered for the inordinate delay lacked sufficiency and failed to meet the threshold required for judicial discretion to be exercised under Section 5 of the Limitation Act.
While acknowledging the discretionary nature of delay condonation, the court observed that such discretion cannot be exercised in the absence of reasonable or plausible cause. The bench recorded that the lower court's decision to condone the delay lacked substantive supporting material and therefore warranted interference under its revisional jurisdiction. As a result, the High Court dismissed the non-applicants' application for condonation of delay and reversed the order that had permitted the restoration of the civil appeal.
The present matter arose from a civil dispute wherein the non-applicants had instituted Civil Suit No. 75/1989 seeking temporary injunction and execution of a sale deed. The applicant, originally the defendant in that suit, filed a counterclaim seeking possession of the suit property. Separately, the non-applicants also filed Civil Suit No. 588/1990 seeking specific performance of contract, which proceeded ex parte. A decree for specific performance was passed in favor of the non-applicants on 4.12.1992, following which a sale deed was executed.
It was recorded in the judgment that the applicant was neither served nor made aware of the pendency of the suit for specific performance. Meanwhile, the non-applicants withdrew Civil Suit No. 75/1989. However, the counterclaim filed by the applicant in that suit was allowed to proceed. Eventually, the applicant succeeded in the counterclaim, with the court directing the non-applicants to restore possession of the property through a judgment and decree dated 20.4.1998.
The non-applicants preferred Regular Civil Appeal No. 732/1998 challenging the decree passed in the counterclaim. However, the appeal remained pending for over 13 years. Due to continuous absence of the non-applicants and their counsel, the appeal was dismissed for want of prosecution on 2.9.2011.
Subsequently, the applicant-initiated execution proceedings under Regular Darkhast No. 19/2017. Notices were issued in the execution proceedings and served upon the non-applicants. It was after this development that the non-applicants filed a restoration application along with an application seeking condonation of a delay of 2325 days.
The ground urged by the non-applicants in the condonation application was that the principal litigant among them, non-applicant No. 1, had shifted to Ratnagiri and was unaware of the status of the appeal. The trial court accepted this explanation and condoned the delay, allowing the restoration of the appeal.
Challenging this order, the applicant approached the High Court via Civil Revision Application No. 116/2024. The applicant contended that the delay was not satisfactorily explained. It was argued that although non-applicant No. 1 claimed to be unaware of the proceedings due to relocation, other non-applicants continued to reside in Nagpur and were well aware of the ongoing litigation. The applicant pointed out that there was no explanation as to why these co-litigants did not pursue the matter or even contact their legal representative.
Further, it was submitted that there was no documentary evidence filed to support the claim that non-applicant No. 1 had relocated to Ratnagiri. Even after non-applicant No. 2 was served notice in the execution proceedings in July 2017, the application for restoration was not filed until February 2018, with no explanation for this additional delay.
The applicant argued that the lower court had erred in condoning the delay merely based on an unsubstantiated oral assertion. According to the applicant, the reasoning lacked legal tenability and constituted a gross error warranting interference by the revisional court.
The High Court began its examination by stating that "the explanation has to be reasonable or plausible to enable the Court to exercise judicial discretion." The court stated the principle that delay cannot be condoned "merely for the asking."
The bench referred to its earlier decision in Rajendra Namdeorao Akre v. Rajkumar Bhalerao Balbudhe and another (Writ Petition No. 6835/2014), where it was recorded that "in absence of any explanation whatsoever and considering the approach of the respondents of not taking remedial steps even after the earlier order dismissing the appeal clearly indicates their negligence and lack of diligence in prosecuting the proceedings."
It further observed, "the reason for delay being caused is more material than the period of delay."
The court also cited Hiren Ashwin Shah v. State of Maharashtra and another, reported in 2024 LawSuit (Bom) 410, wherein it was stated: "Since the court below has exercised its discretion in a positive manner to condone the delay, ordinarily the superior court should not interfere... However, where the court at the first instance refuses to condone the delay, the superior court is at liberty to reassess the entire matter of condonation of delay and arrive at its own conclusion..."
Applying this principle, the High Court noted that the lower court’s decision to condone the delay lacked adequate reasoning or sufficient material to justify its discretion.
It further referred to Mrs. Salcette De Miranda e Borges and another v. Mr. Helder Joaquim Das Santas Almas De Miranda and others (Writ Petition No. 97/2022), to observe that "when discretion is exercised, the opposite party should not be forgotten that some provision should be made for costs payable to the opposing party."
The court then discussed the Supreme Court’s judgement in N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, citing extensively from paragraphs 9 to 13. Among the passages quoted, the High Court recorded: "Length of delay is no matter, acceptability of the explanation is the only criterion... The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
"There is no presumption that delay in approaching the court is always deliberate... If the explanation does not smack of mala fides or is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor."
The court stressed that "by imposing of costs all the requirements of furnishing sufficient cause cannot be dispensed with. Costs cannot be substituted for absence of reasons to condone the delay."
It concluded that the explanation offered—that non-applicant No. 1 was solely managing the litigation and had moved to Ratnagiri—was insufficient, especially in light of the other non-applicants’ inaction.
The High Court conclusively held that: "In absence of any reason which the non-applicants have furnished in the application for condonation of delay, the delay in filing the restoration application could not have been condoned."
The bench observed that maintaining the impugned order would result in "an order passed without there being any material." It found merit in the applicant’s challenge and ruled that a case for interference under revisional jurisdiction had been made out.
Accordingly, the court allowed the Civil Revision Application and declared: "The instant revision application is allowed. The application for condonation of delay filed by the non-applicants stands dismissed. The order passed by the 7th District Judge condoning the delay is set aside. Rule accordingly."
Advocates Representing the Parties:
For the Petitioner: Mr. S.A. Mohta, Advocate
For the Respondents: Mr. S.B. Mohta, Advocate
Case Title: Laxman Motiram Barai v. Hafiza Sheikh & Ors.
Neutral Citation: 2025: BHC-NAG:7091
Case Number: Civil Revision Application No. 116/2024
Bench: Justice Mrs. Vrushali V. Joshi
