Full Judgment Text
NON-REPORTABLE
2025 INSC 985
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO…………… OF 2025
(Arising out of S.L.P.(C) No.22195 of 2025)
M/s. SETHIA INFRASTRUCTURE
PVT. LTD. … Appellant (s)
VERSUS
MAFATLAL MANGILAL
KOTHARI AND ORS. … Respondent(s)
J U D G M E N T
Rajesh Bindal, J.
1. Leave granted.
2. The present appeal arises out of an order dated 25.10.2023,
1
passed by the High Court in Interim Application No. 19020 of 2022 in
2
First Appeal filed by the respondent Nos. 1 and 2. By the aforesaid
order, the High Court condoned huge delay of 5,250 days in filing the
1 High Court of Judicature at Bombay.
2 First Appeal No. 1483 of 1988.
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application for restoration and directed the restoration of the first
appeal for decision on merits that too in the absence of the non-
applicants, just noticing that their private service is complete in view
of an affidavit filed by the applicant.
3. The first appeal was deemed to be dismissed for non-
prosecution on 20.05.2008 as per order dated 20.02.2008, passed by
the High Court, mentioning that in case the compilation of pleadings is
not filed within three months, the appeal shall stand dismissed for non-
prosecution without further reference to the Court. The period of three
months was counted from 20.02.2008.
4. Much facts are not required to be noticed as the challenge
in the present appeal is to an order passed by the High Court vide
which delay of 5,250 days in filing the application for restoration was
condoned.
5. The lis started with the filing of a suit by respondent Nos.1
and 2 seeking eviction of the defendants from the property in dispute.
3
6. The suit was dismissed vide judgment and decree dated
4
07.07.1988. An appeal was filed by the plaintiff in the original suit
3
Original Suit No. 289 of 1967
4
First Appeal No. 1483 of 1988
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against the judgment and decree of the Trial Court. As is available from
the synopsis, the appeal was admitted on 07.03.1989. The aforesaid
appeal was listed before the High Court on 20.02.2008, when the
following order was passed:
“1. If compilation of pleadings is not filed by the
appellants within a period of three months from today, the
Appeal will stand dismissed non-prosecution without
further Cout for reference to the Court. ”
7. As there may have been non-compliance of the direction to
file the paperbook, the appeal stood dismissed for non-prosecution
three months after the passing of the aforesaid order.
8. The application for restoration of the appeal was filed by the
respondent Nos.1 and 2 along with the prayer for condonation of delay
of 5,250 days in filing the application.
9. As is evident from the impugned order passed by the High
Court, the non-applicants are shown to be served by private service in
view of the affidavit filed on record. The order is reproduced
hereinbelow:
“1. It appears that respondents are duly served by
private service in view of affidavit of service filed on record
th th
dated 29 March 2023 and 17 August 2023.
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2. For the reasons stated in the application and in view
of the ratio in (2008) 11 S.C.R. 1, application is allowed in
terms of prayer clause (a).”
10. It has also come on record that after the appeal was
dismissed on account of non-prosecution, certain third party rights
have been created in the property in dispute. We are not dilating much
on these facts as they are not relevant at this stage.
11. On a perusal of the impugned order passed by the High
Court on 25.10.2023, it is evident that in the absence of representation
of the non-applicants, huge delay of 5,250 days in filing the application
for restoration was allowed and no reason was assigned.
12. 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.
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.
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13. 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.
14. In our view, the impugned order passed by the High Court
cannot be legally sustained. The same is accordingly set aside. The
appeal is accordingly allowed. The matter is remitted 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.
15. The parties, through their respective advocates, are
directed to appear before the High Court on 02.09.2025 and the matter
be listed as per roster.
16. Pending applications, if any, stand disposed of.
….........................J.
(RAJESH BINDAL)
...........................J.
(MANMOHAN)
NEW DELHI;
AUGUST 14, 2025.
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