Justice Rajesh Bindal, Justice Manmohan, Supreme Court
Presume Third Party Involvement Whenever Long Delay Is Sought To Be Condoned: Supreme Court In Property Dispute
|The appeal before the Supreme Court arose out of an order whereby the Bombay High Court condoned a delay of 5,250 days in filing the application for restoration.
While setting aside an order of the Bombay High Court condoning a huge delay of 5,250 days in filing the application for restoration, the Supreme Court has held that whenever a delay of a long period of time is sought to be condoned, the Court should not rule out the involvement of third parties in the litigation.
The appeal before the Apex Court arose out of an order whereby the High Court condoned a delay of 5,250 days in filing the application for restoration. This order was passed in the absence of the non-applicants, noticing that their private service was complete in view of an affidavit filed by the applicant.
The Division Bench of Justice Rajesh Bindal and Justice Manmohan stated, “Whenever delay of a long period of time is sought to be condoned, the Court should not rule out involvement of third parties in the litigation. In fact, the Court must presume that third party rights may have been created and/or additional parties may have developed rights and interest in the litigation.”
The Bench also ordered, “In our view, the impugned order passed by the High Court cannot be legally sustained. The same is accordingly set aside.”
Senior Advocate Vinay Navare represented the Appellant, while AOR Sureshan P. represented the Respondent.
Factual Background
The lis started with the filing of a suit by respondents seeking eviction of the defendants from the property in dispute. The suit was dismissed, and the plaintiff’s appeal in the original suit was admitted on March 7, 1989. The aforesaid appeal was listed before the High Court on February 20, 2008, and it was ordered that in case the compilation of pleadings was not filed within three months, the appeal would stand dismissed for non-prosecution without further reference to the Court.
As there may have been non-compliance with the direction to file the paper book, the appeal stood dismissed for non-prosecution three months after the passing of the aforesaid order. The application for restoration of the appeal was filed by the respondents along with the prayer for condonation of the delay of 5,250 days in filing the application.
Reasoning
On a perusal of the impugned order, the Bench found that in the absence of representation of the non-applicants, a huge delay of 5,250 days in filing the application for restoration was allowed, and no reason was assigned.
“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”, the Bench noted.
It also held, “In the present case, it prima facie seems that respondent has woken up from his ‘alleged slumber’ as the respondent has much to gain inasmuch as the appellant/developer has stepped in and is carrying out construction at site on a mega scale.”
Setting aside the impugned order passed by the High Court, the Bench allowed the appeal and remitted the matter back to the High Court. “Consequently, the application for condonation of delay shall be decided afresh after hearing the appellant/developer, who claims to have started developing the suit property during the time period the appeal remained dismissed. If need be, it may be impleaded as party”, it concluded.
Cause Title: M/s. Sethia Infrastructure Pvt. Ltd. v. Mafatlal Mangilal Kothari and Ors. (Neutral Citation: 2025 INSC 985)
Appearance
Appellant: Senior Advocate Vinay Navare, Advocates Arpit Rai, Anirudh Bakhru, Sanjeev Singh, Sameer Brahmbhatt, Prabhsharan Singh Mohi, AOR Aviral Kashyap
Respondent: AOR Sureshan P., Advocates Ajay Panicker, Lavanya Panicker, Shivam Yadav