M/S. Sethia Infrastructure Pvt. Ltd vs Mafatlal Mangilal Kothari

2025 INSC 985 NON-REPORTABLE

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)

JUDGMENT

Rajesh Bindal, J.

1. Leave granted.

2. The present appeal arises out of an order dated 25.10.2023,

passed by the High Court1 in Interim Application No. 19020 of 2022 in

First Appeal2 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 Signature Not Verified Digitally signed by POOJA SHARMA Date: 2025.08.14 16:32:06 IST Reason:

1 High Court of Judicature at Bombay.

2 First Appeal No. 1483 of 1988. Page 1 of 5 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.

6. The suit3 was dismissed vide judgment and decree dated

07.07.1988. An appeal4 was filed by the plaintiff in the original suit

3 Original Suit No. 289 of 1967 4 First Appeal No. 1483 of 1988 Page 2 of 5 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 dated 29th March 2023 and 17th 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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