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2025 Supreme(Online)(Guj) 8107
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANGEETA K. VISHEN, MOOL CHAND TYAGI, JJ
DINESHBHAI ALIAS DILIPBHAI RATILAL THUMMAR – Appellant
Versus
BATUKBHAI JIVABHAI THUMMAR – Respondent
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2023|MISC. CIVIL APPLICATION (FOR RESTORATION) NO. 1 of 2023|F/FIRST APPEAL NO. 21524 of 2018
For the Appellants/Petitioners: MR ROHAN MAJMUDAR, MR NK MAJMUDAR
For the Respondents: MR. HEMAL SHAH
If a party consistently fails to comply with procedural requirements and does not engage seriously with the court, their application for condonation of delay may be dismissed.
Headnote:(A) Civil Procedure Code, 1908 - Section 5 - Condonation of delay - The application for condonation of delay for restoring the appeal was dismissed due to multiple failures of the appellant to attend hearings and respond to instructions - The court noted the lack of seriousness exhibited by the appellant over seven years since the filing of the appeal. (Paras 1, 12)
(B) Restoration - Conditions - The right to restoration was exercised; however, repeated failures to provide adequate instructions led to the dismissal of the application for condonation of delay. (Paras 10, 13)
Facts of the case:
The applicant sought restoration of a first appeal dismissed for non-prosecution after significant delay, during which time the appellant showed a lack of engagement with the legal process.
Findings of Court:
The court concluded that due to the appellant's behaviour and neglect, the application for delay condonation could not be upheld.
Issues: The main issue revolved around the conduct of the appellant in pursuing the appeal and the appropriate actions for unexplained delays.
Ratio Decidendi: The court held that continuous defaults by the appellant in responding to instructions justified the dismissal of the restoration application, emphasizing the importance of procedural adherence in civil appeals.
Result: Civil application seeking condonation of delay dismissed.
| Table of Content |
|---|
| 1. delay condonation process initiated. (Para 1 , 2) |
| 2. arguments presented regarding deposit and prosecution issues. (Para 3 , 4) |
| 3. opposing counsel argues appellant is avoiding payment. (Para 5) |
| 4. prolonged inaction justified dismissal. (Para 8) |
| 5. court's observations on delays and failures in prosecution. (Para 10 , 11) |
| 6. final ruling on applications. (Para 12) |
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. Captioned application has been filed, seeking condonation of delay of 605 days caused in preferring Misc. Civil Application(for restoration) No.1/2023 with a request to restore the F/First Appeal No.21524/2018 to its original position.
2. Mr. Rohan Majmudar, learned advocate, submitted that the Civil Application(for condonation of delay) No.1/2018 came to be dismissed for want of prosecution by passing an order dated 19.07.2019 and subsequent thereto, vide order dated 07.10.2020, the First Appeal was ordered to be disposed of subject to the right of the appellant for restoration. It is thereafter, that the Civil Application(for condonation of delay) No.2/2023 was filed, which came to be dismissed for default vide order dated 27.09.2023 and subsequently vide order dated 09.02.2024, it came to be restored. It is submitted that during the hearing of this application, this Court on 26.07.2024, has passed an order directing the learned advocate for the applicant to take instructions as to whether the appellant is willing to deposit the decreetal amount in question. The Court, was also not satisfied with the explanation.
3. Mr. Rohan Majmudar, learned advocate, submitted that the instructions could not be taken from the appellant. Several attempts were made; however, the appellant, is not responding. Repeated requests were made before this Court and this Court, has been kind enough to grant time, apropos which, the letters were addressed to the appellant dated 24.06.2025 and 16.07.2025, which were sent through speed post. However, the learned advocate, is unable to receive any response, much less the instructions. Request is made to pass the appropriate order.
4. On the other hand, Mr. Hemal Shah, learned advocate, submitted that the appellant, is deliberately avoiding the deposit, as the suit filed by the original plaintiff, has been allowed and the defendant-appellant has been directed to pay an amount of Rs.53,50,000/- together with 9% interest and it appears that the defendant-appellant, is avoiding the payment. The appeal has been filed in the year 2018; however, since then, no notice has been issued by this Court. In fact, the applications in the appeals, have been dismissed for want of prosecution. It is urged that considering the conduct of the defendant-appellant, no indulgence, is required to be shown.
5. Heard the learned advocates appearing for the respective parties. 6. The captioned appeal, is filed challenging the judgment dated 31.12.2016. As there was delay, the appeal, was accompanied by Civil Application(for condonation of delay) of 454 days.
7. The appeal was registered on 05.07.2018 and on 08.08.2018, this Court, was kind enough to issue rule. Vide order dated 19.07.2019, the Civil Application(for condonation of delay) came to be dismissed for want of prosecution. The order reads thus:-
“When the application is called out and taken up for hearing, no one is present on behalf of the applicant. It appears that the applicant has not interested to proceed with the application. Hence, the application is dismissed for want of prosecution. Rule is discharged. Ad-interim / interim relief, if any, stands vacated forthwith.”
8. In view of the dismissal of the application seeking condonation of delay, vide order dated 07.10.2020, the captioned appeal came to be disposed of reserving the right to the appellant for restoration, as it was dismissed for non-prosecution. The appellant-original defendant, preferred Misc. Civil Application(for restoration) together with Civil Application(for condonation of dela
