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SUPREME COURT OF INDIA
Rajesh Bindal, Manmohan, JJ.
M/s. Sethia Infrastructure Pvt. Ltd. – Appellant
Versus
Mafatlal Mangilal Kothari and Ors. – Respondents
Civil Appeal No. 10650 of 2025 (Arising out of S.L.P.(C) No.22195 of 2025)
Decided On : 14-08-2025
Civil Procedure Code, 1908 – Sections 96 and 100 – Appeal – Dismissal for non-prosecution – Huge delay of 5,250 days in filing application for restoration of appeal – When Court is dealing with application for restoration of any matter which is dismissed for non-prosecution and application for restoration is filed after huge delay, Court must be cognizant of fact that time does not stand still – Whenever delay of a long period of time is sought to be condoned, Court should not rule out involvement of third parties in litigation – Court must presume that third party rights may have been created and/or additional parties may have developed rights and interest in litigation – Impugned order passed by High Court Condoning delay cannot be legally sustained – Impugned order set aside and matter remitted back to High Court – Application for condonation of delay shall be decided afresh – Appeal allowed. (Paras 12, 13 and 14)
Facts of the case:
Present appeal arises out of an order dated 25.10.2023, passed by High Court in Interim Application No. 19020 of 2022 in First Appeal filed by the respondent Nos. 1 and 2. By said order, High Court condoned huge delay of 5,250 days in filing application for restoration and directed restoration of first appeal for decision on merits that too in absence of non-applicants, just noticing that their private service is complete in view of an affidavit filed by applicant.
Findings of Court:
In absence of representation of non-applicants, huge delay of 5,250 days in filing application for restoration was allowed and no reason was assigned.
Result : Appeal allowed.
Based on the provided legal document, the key points are as follows:
The appeal arises from an order passed by the High Court that condoned a significant delay of 5,250 days in filing an application for restoration of a dismissed appeal. The High Court had directed the restoration of the appeal for a decision on merits despite the absence of the non-applicants and without providing a reason for the delay (!) (!) .
The original appeal was dismissed for non-prosecution due to non-compliance with a court order to file the pleadings within three months. The appeal was listed before the High Court on 20.02.2008, and the dismissal was based on non-compliance with this deadline (!) (!) .
The Court emphasized that when a court considers condoning a long delay, it must recognize that time does not stand still and that third parties may have developed rights or interests in the litigation during the period of delay. The Court highlighted the importance of considering the potential involvement of third parties when such delays are sought to be condoned (!) .
The Court found that the High Court's order condoning the delay was not legally sustainable because it did not consider the involvement of third parties or provide reasons for the delay. The order was therefore set aside, and the matter was remitted back to the High Court for a fresh decision on the application for condonation of delay, with the possibility of impleading third parties if necessary (!) .
The Court directed that the application for condonation of delay be decided afresh after hearing the appellant/developer, who had commenced development activities during the period the appeal was dismissed. The parties were instructed to appear before the High Court on a specified date for further proceedings (!) (!) .
The decision underscores that courts must exercise caution and consider all relevant circumstances, including third-party rights, when dealing with applications for restoration and condonation of delays, especially after a long period has elapsed (!) .
These points encapsulate the Court's reasoning, the procedural history, and the directions for future proceedings related to this case.
| Table of Content |
|---|
| 1. overview of appeal status and dismissal. (Para 2 , 3 , 5 , 6 , 10) |
| 2. court's caution against delays and third-party rights considerations. (Para 4 , 11 , 12 , 13) |
| 3. setting aside of the high court's order. (Para 14) |
| 4. directions for future hearings. (Para 15 , 16) |
JUDGMENT :
Rajesh Bindal, J.
1. Leave granted.
2. The present appeal arises out of an order dated 25.10.2023, passed by the High Court1[High Court of Judicature at Bombay] in Interim Application No. 19020 of 2022 in First Appeal2[First Appeal No. 1483 of 1988] filed by the respondent Nos. 1 and 2. By the aforesaid order, the High Court condoned huge delay of 5,250 days in filing the application for restoration and directed the restoration of the first appeal for decision on merits that too in the absence of the non- applicants, just noticing that their private service is complete in view of an affidavit filed by the applicant.
3. The first appeal was deemed to be dismissed for non- prosecution on 20.05.2008 as per order dated 20.02.2008, passed by the High Court, mentioning that in case the compilation of pleadings is not filed within three months, the appeal shall stand dismissed for non- prosecution without further reference to the Court. The period of three months was counted from 20.02.2008.
4. Much facts are not required to be noticed as the challenge in the present appeal is to an order passed by the High Court vide which delay of 5,250 days in filing the application for restoration was condoned.
5. The lis started with the filing of a suit by respondent Nos.1 and 2 seeking eviction of the defendants from the property in dispute.
6. The suit3[Original Suit No. 289 of 1967] was dismissed vide judgment and decree dated 07.07.1988. An appeal4[First Appeal No. 1483 of 1988] was filed by the plaintiff in the original suit against the judgment and decree of the Trial Court. As is available from the synopsis, the appeal was admitted on 07.03.1989. The aforesaid appeal was listed before the High Court on 20.02.2008, when the following order was passed:
“1. If compilation of pleadings is not filed by the appellants within a period of three months from today, the Appeal will stand dismissed non-prosecution without further Court for reference to the Court. ”
7. As there may have been non-compliance of the direction to file the paperbook, the appeal stood dismissed for non-prosecution three months after the passing of the aforesaid order.
8. The application for restoration of the appeal was filed by the respondent Nos.1 and 2 along with the prayer for condonation of delay of 5,250 days in filing the application.
9. As is evident from the impugned order passed by the High Court, the non-applicants are shown to be served by private service in view of the affidavit filed on record. The order is reproduced hereinbelow:
“1. It appears that respondents are duly served by private service in view of affidavit of service filed on record dated 29th March 2023 and 17th August 2023.
2. For the reasons stated in the application and in view of the ratio in (2008) 11 S.C.R. 1, application is allowed in terms of prayer clause (a).”
10. It has also come on record that after the appeal was dismissed on account of non-prosecution, certain third party rights have been created in the property in dispute. We are not dilating much on these facts as they are not relevant at this stage.
11. On a perusal of the impugned order passed by the High Court on 25.10.2023, it is evident that in the absence of representation of the non-applicants, huge delay of 5,250 days in filing the application for restoration was allowed and no reason was assigned.
12. We may only observe that when a Court is dealing with an application for restoration of any matter which is dismissed for non- prosecution and the application for restoration is filed after huge delay, the Court must be cognizant of the fact that time does not stand still. Whenever delay of a long period of time is sought to be condoned, the Court shoul
AI
Appeal – Whenever delay of a long period of time is sought to be condoned, Court should not rule out involvement of third parties in litigation.
Judicial discretion to condone delays must favor adjudication on merits, particularly where substantive efforts have been made by the litigant.
The court emphasized the necessity of a communication system for litigants to prevent delays in justice, allowing the restoration application under Section 5 of the Limitation Act.
A party seeking condonation of delay under Section 5 of the Limitation Act must demonstrate sufficient cause; mere invocation of a liberal approach unaccompanied by due diligence will not suffice.
Approaching the court expeditiously and reluctance to condone unexplained delays and inordinate laches in seeking remedies.
The primary legal point established is that the responsibility for compliance with court orders lies with the counsel, and the litigant cannot be held accountable for the counsel's negligence.
(1) – Limitation period – Length of delay is a relevant matter which court must take into consideration while considering whether delay should be condoned or not – While considering plea for condona....
The court reinforced that an excessive delay in seeking restoration of a suit cannot be condoned based on vague explanations, as it undermines the principles of the law of limitation.
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