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.

ORDER :

J.C.DOSHI, J.

1. By way of this application filed u/s 5 of the Limitation Act, 1963 (in short “the Act”), the applicant has prayed to condone the delay of 558 days in filing the Restoration Application to restore Second Appeal which came to be dismissed for non prosecution on 19.06.2024.

2. The appellant has filed Second Appeal under section 100 of Code of Civil Procedure, 1908 (for short ‘CPC) against judgment and decree dated 07.01.2000 passed by learned Assistant Judge, Junagadh in Regular Civil Appeal No.22 of 1997, whereby, learned Appellate Court allowed the appeal and reversed the judgment and decree passed by learned Trial Court in Regular Civil Suit No.126 of 1992 dated 07.02.1997.

3. The Second Appeal was listed for hearing on 19.06.2024 and this Court has passed following order :-

“When the matter is taken up for hearing, learned advocate for the appellant is absent. Even on the last occasion, this Court has recorded the absence of learned advocate for the appellants vide order dated 12.06.2024. It seems that the appellant is not interested in prosecuting the appeal. The appeal stands dismissed for non-prosecution.”

4. In this circumstances, the applicant has filed Civil Application to condone delay in preferring Restoration Application as well as restoration application to restore Second Appeal.

5. Learned advocate for the applicant submits that applicant had filed Restoration Application being Misc. Civil Application No.25815 of 2024 on 03.09.2024 and pursuant to filing of Misc. Civil Application, the Hon’ble Court vide order dated 06.02.2025 was pleased to direct the learned advocate of the applicant to remove office objections within period of two weeks. It is submitted that since office objections were not removed within time, application for Restoration No.25815 of 2024 was dismissed for non prosecution. Learned advocate for the applicant submits that Officer of applicant recently came to know about the passing of the aforesaid order and tried to contact earlier advocate, however, since there was no response, the applicant has engaged another advocate for filing restoration and to proceed further with the matter. Thereafter, advocate of applicant without any delay prepared application after seeking necessary information from the applicant, however, in the meantime period of limitation expired. It is submitted that thus there is delay in preferring Restoration Application. It is also submitted that there was no intention to abandon the proceedings. Learned advocate for the applicant submitted that applicant has good case on merits, it should not be jettisoned on technical ground. It is submitted that delay is sufficiently explained and thus, the Court should take liberal view and condone delay. Thus, it is submitted to allow Civil Application as well as Restoration Application.

6. Learned advocate Mr.Mehta for the other side submitted that earlier this Court has passed order on 06.02.2025 and directed the applicant to remove office objections within time, which the applicant did not comply. It is submitted that this fact itself indicates that applicant is negligent in prosecuting lis. It is submitted that delay is required to be explained by adding sufficient cause; the Court may not insist for day to day explanation but at the same time, delay should be sufficiently, explained which may inspire confidence of the Court. It is submitted that in the present case, since necessary pleadings are completely missing, the Court may not exercise discretion to adopt liberal approach and condone delay.

6.1. Upon above submissions, learned advocate Mr. Mehta submitted to dismiss the applications.

7. At the outset let refer Section 5 of