CIVIL PROCEDURE CODE, 1908
— Order 9 Rule 13; Order 22 Rules 4 & 9; Order 43 Rule 1(d) — Recall application — Abatement — Condonation of inordinate delay of about 2200 days — Proper exercise of judicial discretion — Principles reiterated.
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High Court condoned delay of about six years (2200 days) in filing application for recall of an order of abatement without adverting to detailed findings of Trial Court which had rejected such recall petition.
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Trial Court had found that:
(a) Rights of the original plaintiff (since deceased) had already been determined in earlier suits — O.S. No. 33 of 1971 (specific performance) and O.S. No. 104 of 1972 — both dismissed on merits, thus attracting res judicata.
(b) Respondents were educated persons; they obtained certified copies of abatement order but failed to act promptly.
(c) Delay of six years wholly unexplained; no sufficient cause shown.
(d) Conduct of respondents indicated abuse of process of law. -
Despite the above, the High Court condoned delay mechanically invoking “liberal” and “justice-oriented” approach. Held, such exercise is legally untenable. High Court exhibited absence of judicial conscience and restraint.
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The Supreme Court emphatically held that:
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Law of limitation is based on sound public policy — it prevents stale claims and compels diligence.
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Expressions like “liberal approach”, “substantial justice” or “justice-oriented approach” cannot be employed to defeat substantive law of limitation.
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Length of delay is a relevant factor; where delay is inordinate and explanation lacking, it cannot be condoned on sympathy or equity.
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Before condoning delay, court must assess bona fides of explanation; only when explanation is plausible and equities are balanced, merits of the main matter may be incidentally considered.
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Observations:
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“We are at our wits’ end to understand why the High Court overlooked all the aforesaid aspects… The High Court has exhibited complete absence of judicial conscience and restraints, which a judge is expected to maintain while adjudicating a lis between the parties.”
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“No court should keep the Sword of Damocles hanging over the head of a litigant for an indefinite period of time.”
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Held, the impugned order of High Court condoning 2200 days’ delay and reviving a suit pending since 1977 was unsustainable. The Trial Court’s order rejecting recall (dated 05-08-2014 in Misc. Case No. 223 of 2006) was properly reasoned and is restored.
— Appeal allowed.
LIMITATION ACT, 1963 — Sections 5 & 3 — Principles governing condonation of delay — Duty of court.
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Held, the question of limitation is not a mere technicality. The law of limitation rests on principles of public policy and equity; it is intended to ensure finality and repose.
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The Court cautioned that “substantial justice” cannot override statutory limitation, and litigants cannot be permitted to fix their own periods of limitation.
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Result: Delay of six years not condonable in absence of sufficient cause — Appeal allowed, High Court’s order set aside, Trial Court’s order restored.
CASE SUMMARY
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Suit history: Original suit of 1977 (renumbered as O.S. No. 1833/1980) repeatedly dismissed and restored; eventually abated in 2000; recall filed belatedly in 2006.
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Delay: ≈ 2200 days (6 years).
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Trial Court: Dismissed recall petition.
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High Court: Condoned delay, allowed appeal.
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Supreme Court: Set aside High Court’s order; restored Trial Court’s dismissal.
2025 INSC 53 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 317 OF 2025
(@Petition for Special Leave to Appeal(C)No.9719/2020)
H.GURUSWAMY & ORS. ….APPELLANTS(s)
VERSUS
A. KRISHNAIAH SINCE DECEASED BY LRS. ….Respondent(s)
O R D E R
1. This appeal arises from the judgment and order passed by
the High Court of Karnataka at Bengaluru dated
30.01.2020 in Misc. First Appeal No. 7220 of 2014 filed
under Order 43 Rule 1(d) of the Civil Procedure Code,
1908 (for short, “the CPC”) by which the order dated
05.08.2014 passed in Misc. Case No. 223 of 2006 on the
file of the XIV Additional City Civil Judge, Bengaluru
rejecting the application filed under Order 9 Rule 13
CPC came to be set aside and thereby the appeal was
allowed.
2. The facts giving rise to this appeal may be summarised
as under:
a. The suit schedule property bearing Sy. No. 1/11 situated
at Byrasandra, Bangalore, Karnataka measuring 45 yards
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East to West and 55 yards North to South was purchased
by one Venkatappa in the year 1916. Thereafter, the said
Venkatappa sold a portion of the suit property and
retained the balance portion measuring 45 yards East to
West and 27.5 yards North to South. Vide a registered
family partition, the suit schedule property came to be
divided between Venkatappa and Muniga @ Chikonu (Brother
of Venkatappa) wherein Venkatappa had received 29
Ankanas along with 1/3rd share and Chikonu had received
10 Ankanas of house along with 2/3rd share.
b. A suit for injunction being O.S No.615/1960 came to be
filed by Venkatappa against his family members which
came to be subsequently withdrawn on or about 14.06.
1965.
c. Initially one C.R. Narayana Reddy had filed a suit for
specific performance against the appellants herein being
O.S. No. 33/1971 with respect to the land along with a
house in Byrasandra Village before the Court of the
Civil Judge, Civil Station, Bangalore which came to be
disposed of vide Judgment and Order dated 30.08.1971
with a direction to the appellants herein to refund the
earnest amount that had been paid to them.
d. The deceased Respondent No.1 herein namely Sri.
A.Krishnaiah had impleaded himself as Defendant No. 14
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in O.S No.33/1971 claiming to have purchased the suit
property from the Defendants No.3 to 13 respectively in
O.S. No.33/1971. The Civil Court had recorded a
categorical finding that the conduct of the deceased
Respondent No.1 did not seem to be bona fide and that
the sale in his favour was hit by the doctrine of lis
pendens and that the deceased Respondent No. 1 did not
seem to be a bona fide purchaser and was not entitled to
any relief with regard to the suit property.
e. Thereafter on the very same cause of action, the
deceased Respondent No. 1 filed O.S. No. 104/1972
seeking similar reliefs against the appellants. The said
suit came to be dismissed on merits vide Judgment and
Order dated 08.12.1975.
f. Despite failing in two rounds of proceedings and not
challenging the Orders passed in O.S. No.33/1971 and O.S
No.104/1972, the deceased Respondent proceeded to file
yet one another suit for possession and other reliefs by
way of O.S. No.603/1977 before the Court of the Civil
Judge, Bangalore City. The said suit came to be
eventually renumbered as O.S. No. 1833/1980.
g. The O.S. No.1833/1980 came to be dismissed on the first
occasion for default in the year 1983. In lieu of the
same, the Respondents herein had filed Misc. Petition
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No.1063/1984 seeking to restore the said suit which came
to be allowed in the year 1984. Thereafter, the
Defendant No.4 in O.S. No.1833/1980 namely Shri.
Nagaraja passed away on 04.12.1999. The Respondents
having come to know of the same and having been granted
sufficient opportunities on 06.03.2000, 18.07.2000 and
22.08.2000 respectively, failed to bring the legal heirs
of the Defendant No.4 on record as a consequence of
which, the O.S. No.1833/1980 came to be dismissed as
having stood abated vide Order dated 22.08.2000.
h. The Respondents herein/Plaintiffs in their application
for recall dated 06.03.2006 stated that the wife of the
Deceased Respondent No. 1 namely Smt. Jayalakshmi G. who
is one of the Respondents/Plaintiffs had been suffering
from some ailment and had to be admitted in hospital on
09.02.2000. She also had to undergo Angioplasty on
27.09.2003 and that the Respondents came to receive the
certified copy of the Order dated 22.08.2000 on
26.08.2005. However, thereafter, the Respondents
proceeded to file applications under Order 22 Rule 4,
Order 32 Rule 1 & 2 and Order 22 Rule 9 respectively
before the Trial Court in O.S. No. 1833/1980 seeking to
set aside the abatement and bring the legal heirs on
record. However, the same came to be dismissed by way of
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Order dated 16.11.2005 with liberty to the Respondents
to file an application for recall.
i. Despite the above, the Respondents proceeded to
challenge the Order dated 16.11.2005 before the High
Court, in W.P No.26660/2005 which came to be dismissed
as well.
j. It is only thereafter on 06.03.2006 that the Respondents
proceeded to file an application for recall in Misc.
Case No.223/2006 before the Trial Court. The Trial Court
vide a detailed Order dated 05.08.2014 dismissed the
Misc. Case No.223/2006 holding as under:
a) that the rights of the deceased Respondent No.1 had
already been decided much prior in the suit for specific
performance in O.S. No.33/1971 itself wherein it had
been held that the deceased Respondent No. 1 was not a
bona fide purchaser and that a similar suit in O.S. No.
104/1972 which arose out of the same cause of action had
also been dismissed on merits.
b) that all the Respondents are educated and there was
no impediment for the Respondents to obtain the
certified copies in O.S. No. 1833/1980 at the earliest
point of time.
c) that the Respondents had failed to assign any
sufficient cause for not filing the application till
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2006 and moreover, the trial court noted that the cause
shown by the Respondents also appeared to be doubtful.
Furthermore, it was held that there is an inordinate
delay of 6 years in filing the application for recall
and the cause shown was insufficient.
d) that the Respondents despite having obtained the
certified copies on 26.08.2005, had only filed the Misc.
No.223/2006 on 03.06.2006 and the Respondents had failed
to explain their delay in filing the petition.
e) that the suit itself is hit by res judicata as the
matter in the suit in the present suit and that of O.S.
No.33/1971 were one and the same wherein there were
specific findings that the Deceased Respondent No. 1 was
not a bona fide purchaser and was not entitled to any
relief. The court also observed that the present
application for recall was barred by limitation and
furthermore, the suit in O.S. No.104/ 1972 had been
dismissed on merits as well. That the Respondents had
not approached the Court with clean hands and had abused
the process of law.
3. Being aggrieved with the above, the Respondents
challenged the Order dated 05.08.2014 before the High
Court in W.P No.7220/2014 wherein the High Court allowed
the Writ Petition thereby condoning the delay of about
2200 days.
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4. In such circumstances referred to above, the appellants
are here before this Court with the present appeal.
5. Mr. Anand Sanjay M. Nuli, the learned Senior counsel
appearing for the appellants submitted that the High
Court proceeded to condone the delay of about 2200 days
without adverting to any of the reasons assigned by the
Trial Court while rejecting application filed for
recall.
6. He submitted that the High Court by its impugned order
could be said to have proceeded to revive a suit which
had been instituted in the year 1977 i.e., a suit which
had been instituted about 48 years ago and is still at
the stage of leading evidence.
7. He submitted that there is a delay of six years in
filing the application for recall itself. He pointed out
that this is the second instance that the suit came to
be dismissed due to negligence and callous attitude on
the part of the respondents.
8. In such circumstances referred to above, he prayed that
there being merit in his appeal, the same may be allowed
and the impugned judgment and order passed by the High
Court be set aside.
9. On the other hand, Mr. Rajesh Mahale, the learned Senior
counsel appearing for the respondents submitted that no
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error not to speak of any error of law could be said to
have been committed by the High Court in passing the
impugned order. He would submit that all that the High
court has done is to condone the delay with a view to do
substantial justice between the parties.
10. In such circumstances referred to above, he prayed that
there being no merit in this appeal, the same may be
dismissed.
11. Having heard the learned counsel appearing for the
parties and having gone through the materials on record,
the only question that falls for our consideration is
whether the High Court committed any error in passing
the impugned judgment and order.
12. We take notice of the following glaring features of the
matter:
(i) The original suit is of the year 1977. The said suit
came to be re-numbered as Original Suit No. 1833 of
1980. It has been 48 years that the suit is pending
for recording of evidence.
(ii) The Original Suit No. 1833 of 1980 came to be
dismissed for default in the year 1983. The same was
restored in 1984.
(iii) The defendant No. 4 in Original Suit No. 1833 of
1980, namely, Nagaraja passed away on 4.12.1999.
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(iv) The respondents herein were granted opportunities on
6.03.2000, 18.7.2000 and 22.8.2000 respectively to
bring the legal heirs of the defendant No. 4 on
record. Having failed to do so the suit ultimately
came to be dismissed as having stood abated.
(v) The rights of the deceased respondent No. 1 had
already been decided in the suit filed for specific
performance i.e. the Original Suit No. 33 of 1971.
(vi) The respondents having obtained the certified copies
on 26.8.2005 preferred the Misc. Case No. 223 of
2006 on 06.03.2006.
(vii) Indisputably, there is a delay of 6 years (about
2200 days) in filing the application for recall
itself.
13. We are at our wits end to understand why the High Court
overlooked all the aforesaid aspects. What was the good
reason for the High Court to ignore all this? Time and
again, the Supreme Court has reminded the District
judiciary as well the High courts that the concepts such
as “liberal approach”, “Justice oriented approach”,
“substantial justice” should not be employed to
frustrate or jettison the substantial law of limitation.
14. We are constrained to observe that the High Court has
exhibited complete absence of judicial conscience and
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restraints, which a judge is expected to maintain while
adjudicating a lis between the parties.
15. The rules of limitation are not meant to destroy the
rights of parties. They are meant to see that the
parties do not resort to dilatory tactics but seek their
remedy promptly.
16. The length of the delay is definitely a relevant matter
which the court must take into consideration while
considering whether the delay should be condoned or not.
From the tenor of the approach of the respondents
herein, it appears that they want to fix their own
period of limitation for the purpose of instituting the
proceedings for which law has prescribed a period of
limitation. Once it is held that a party has lost his
right to have the matter considered on merits because of
his own inaction for a long, it cannot be presumed to be
non-deliberate delay and in such circumstances of the
case, he cannot be heard to plead that the substantial
justice deserves to be preferred as against the
technical considerations. While considering the plea for
condonation of delay, the court must not start with the
merits of the main matter. The court owes a duty to
first ascertain the bona fides of the explanation
offered by the party seeking condonation. It is only if
the sufficient cause assigned by the litigant and the
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opposition of the other side is equally balanced that
the court may bring into aid the merits of the matter
for the purpose of condoning the delay.
17. We are of the view that the question of limitation is
not merely a technical consideration. The rules of
limitation are based on the principles of sound public
policy and principles of equity. No court should keep
the ‘Sword of Damocles’ hanging over the head of a
litigant for an indefinite period of time.
18. For all the foregoing reasons this appeal succeeds and
is hereby allowed.
19. The impugned order passed by the High Court is set aside
and that of the Trial Court dated 05.08.2014 passed in
Misc. No. 223 of 2006 is hereby restored.
……………………………………………..J.
(J.B.PARDIWALA)
……………………………………………..J.
(R.MAHADEVAN)
New Delhi.
8th January, 2025.
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