The discretionary power to condone delay under Section 5 of the Limitation Act must be exercised judiciously; it is not a tool to overlook gross negligence, lack of due diligence, or inordinate delays, and cannot be invoked to bypass the substantive law of limitation.

JUDGMENT

1. By way of this application filed under Section 5 of the Limitation Act, 1963 (hereinafter referred to as ‘the Act’), the heirs and legal representatives of the original plaintiff prayed for the following reliefs:-

“5.A. Your Lordship may be pleased to admit and allow this Civil Application and may further be pleased to condone the delay of 6110 days in preferring the application for setting aside the abetment and CA for joining the legal heirs of the original Appellant in captioned Second Appeal No. 17 of 2003 in the facts and the circumstances of the case and in the interest of justice;

B. Any other relief or further relief may be granted as deemed fit in the interest of justice.”

2. The facts of the case in a nutshell are as under:-

2.1 That the respondent No.1 herein filed a Regular Civil Suit No. 102 of 1985 in the Court of Civil Judge (Junior Division) Kodinar against the present appellant and respondent No.2 herein for declaration of right of way in Survey Nos. 10 and 3 of the appellant to reach to the land Survey Nos. 11 and 4 of respondent No.1 and further the declaration to the effect that respondent No. 1 has right to carry water upto Survey No.11 of him through Survey No.10 of the appellant and upto Survey No.4 of him through Survey Nos. 10 and 3 of the appellant. Respondent No.1 also prayed for permanent injunction with respect to these easementary rights against the appellant and respondent no.2. That, admittedly respondent no.2 herein has sold his land bearing Survey No.3 vide a registered sale deed dated 16.07.1985 to the appellant herein and accordingly. respondent No.2 is no more interested in this proceedings.

2.2 The learned trial Court, vide its judgment and decree dated 09.08.1993, partly allowed the suit inter alia declaring that respondent No.1 has right to carry water on eastern side of the agricultural land bearing Survey No. 10 belonging to the appellant upto the land Survey No.11 of respondent No.1. The learned trial Court has dismissed the suit of respondent No.1 with regard to the right of way claimed in Survey No.10 to reach his field of Survey No.11 and in Survey Nos. 10 and 3 of the appellant to reach the land Survey No.4 of respondent No.1. The learned trial Court also dismissed the suit against the claim of right to carry water and right of way for Survey No.4 through Survey Nos. 10 and 3 of the appellant.

2.3 That respondent No.1 preferred an appeal being Regular Civil Appeal No. 25 of 1993 in the Court of learned District Judge at Amreli. The appellant and respondent No.2 filed cross-objections under Order XLI Rule 22 of ‘the Code’ against the findings of the learned trial Court on Issue Nos. 2 and 5 within the time prescribed. That Kodinar Taluka became part of the Junagadh District and accordingly, the appeal of respondent No.1 along with the cross objections filed by the appellant and respondent No.2 came to be transferred to the Court of learned Joint District Judge, Veraval and it was re numbered as Regular Civil Appeal No. 102 of 2001. The learned Second Joint District Judge, vide his judgment and decree dated 04.02.2003, partly allowed the appeal of respondent No.1 holding that respondent No.1 has right to carry water from his Survey No. 9 through a canal through the land Survey No.8/1 and Survey No.3 and ac