Uttarakhand High Court
M/S Zaz Sons Export Pvt. Ltd And Another vs Akhil Kumar Gupta on 9 July, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
UKHC010063872018
2026:UHC:5617
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 68 of 2018
M/s Zaz Sons Export Pvt. Ltd and Another ...... Appellants
Vs.
Akhil Kumar Gupta ..... Respondent
Present:
Dr. Menaka Guruswamy, Senior Advocate (through video conferencing) assisted
by Mr. Siddharth Singh and Mr. Hardik Sah, Advocates for the appellants.
Mr. S.K. Jain, Senior Advocate assisted by Mr. Divyam Sharma, Advocate
holding brief of Mr. Siddharth Jain, Advocate for the respondent.
JUDGMENT
Hon’ble Ravindra Maithani, J. (Oral)
The present second appeal is preferred against the
following:-
i) The judgment and decree dated
03.04.2005, passed in Original Suit No.
455 of 1995, Akhil Kumar Gupta v. M/s
Zaz Sons Export Pvt. Ltd. and Another by
the court of 3rd Additional Chief Judicial
Magistrate, Dehradun (“the suit”); and
ii) The order dated 01.10.2014, passed in
R.M. No.745 of 2005, M/s Zaz Sons Export
Pvt. Ltd. and another v. Akhil Kumar
Gupta (“the Misc. case”), by the court of VI
Additional District Judge, Dehradun.
2. Heard learned counsel for the parties and perused
the record.
3. The record reveals that the respondent filed the
suit for recovery of Rs. 85,868.65/- along with interest against the
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appellants. This suit was decreed on 03.04.2001. The appellants
proposed to prefer an appeal challenging the judgment and decree
dated 03.04.2001 passed in the suit, but it was delayed.
Therefore, a delay condonation application under Section 5 of the
Limitation Act, 1963 (“the Act”) was filed by the appellants along
with the memo of appeal. It is the basis of the Misc. case.
4. The respondent did file objections to the delay
condonation application. By the impugned order dated
01.10.2014, passed in the Misc. case, the application under
Section 5 of the Act filed by the appellants has been dismissed. It
is challenged in this appeal.
5. Before we proceed further, it would be apt to
record, at this stage itself, that the delay condonation application
was filed by the appellants on the ground that the deponent was
suffering from heart disease since 1995, and he was completely
bed ridden since 1999. It was so stated in Para No.2 of the
affidavit filed by the appellant no.2, Tahir Hussain, which further
records that the medical certificate is also enclosed as Annexure
No.1 to the affidavit. One of the grounds that were taken for delay
condonation was that the earlier counsel of the appellants, Mr.
M.P. Awasthi, had passed away on 15.04.2001, and since the
appellant no.2, Tahir Hussain, was bed ridden, he could not
pursue the matter in the court at Dehradun.
6. The respondent did file his objections along with
the affidavit, and all these facts were denied. With regard to the
death of Advocate Mr. M.P. Awasthi, it was recorded in Para No.4
of the affidavit that, “It is wrong, false and denied that the
expiry of Shri M.P. Awasthi, Advocate has anything do with
the decree or the delay in preferring the appeal.” The factum
of illness has also been denied. The memo of appeal along with
delay condonation application was filed on 19.10.2005.
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7. Initially, when the appeal was taken up,
substantial questions of law were not framed. Subsequently, three
questions of law were framed on 26.11.2019. This Court need not
reproduce them for the simple reason that they were substituted
by the questions of law that were framed by the Court on
01.05.2025. They are as below:-
“(i). Whether the First Appellate Court adopt a liberal
approach in considering application for
condonation of delay on ground of substantial
cause under Section 5 of the Limitation Act?
(ii). Whether dismissal of the First Appeal as barred by
time amounts to confirmation of the decree passed
by the trial Court, if no, what would be the effect?
(iii). If order of the First Appellate Court amounts to the
confirmation of the decree then whether the
interest as awarded by the trial Court was in
conformity with the provision of “The Interest on
Delayed Payments to Small Scale and Ancillary
Industrial Undertakings Act, 1993“, (Act No.32 of
1993).”
8. Not only this, subsequent to it, one more question
of law was framed by this Court on 29.10.2025, which is as
below:-
“(iv) Whether the Civil Court at Dehradun had
jurisdiction to entertain the suit in view of the
Purchase Order conferring exclusive jurisdiction on
the courts at Kanpur.”?”
9. Learned Senior Counsel appearing for the
appellants submits that the first appellate court ought to have
taken a very liberal view while considering the delay condonation
application, but it was not so done, which resulted in the rejection
of the delay condonation application, as a consequence of which
the judgment and decree passed by the trial court has been
confirmed; if liberal approach in such matter is not taken, it
causes substantial loss to a party.
10. In support of her arguments, she would refer to
the principles of law, as laid down by the Hon’ble Supreme Court
in the case of N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC
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123, to argue that the Court should take a very liberal approach
while considering the delay condonation application.
11. In the case of N. Balakrishnan (supra), the Hon’ble
Supreme Court, in Para No.12 of the judgment, observed as
hereunder:-
“12. A court knows that refusal to condone delay would
result in foreclosing a suitor from putting forth his
cause. There is no presumption that delay in
approaching the court is always deliberate. This
Court has held that the words “sufficient cause”
under Section 5 of the Limitation Act should
receive a liberal construction so as to advance
substantial justice vide Shakuntala Devi
Jain v. Kuntal Kumari, AIR 1969 SC 575 and State
of W.B. v. Administrator, Howrah Municipality,
(1972) 1 SCC 366.”
12. She further submits that the phrase “sufficient
cause”, as given under Section 5 of the Act, should get a liberal
construction.
13. On behalf of the respondent, learned Senior
Advocate submits that in the instant case, no cause has been
shown for delay in filing the appeal; the appellant no.2 write in his
affidavit that he was unwell, but the medical certificate has not
been filed; the death certificate of the lawyer has also not been
filed.
14. In support of his contention, learned Senior
Counsel for the respondent has relied on the principles of law, as
laid down in the cases of State of U.P. and another v. Hari
Shanker Dubey, 2002 SCC OnLine All 44, and Basawaraj and
Another v. Special Land Acquisition Officer, (2013) 14 SCC 81.
15. In the case of Hari Shanker Dubey (supra), in
Paragraph Nos. 3, 4 and 5, the Hon’ble Allahabad High Court
observed as follows:-
“3. It is true that the application filed under Section 5
of the Limitation Act is to be liberally construed but
such interpretation on liberally has to be made on
the basis of the materials disclosed. If no material
5is disclosed, it is not possible to construe the
petition liberally because very valuable rights of the
other party are involved and the same cannot be
ignored.
4. In the above facts and circumstances of the case
the application filed under Section 5 of the
Limitation Act is dismissed with the aforesaid
observations.
5. Since the delay condonation petition has been
dismissed, the special appeal itself stands
dismissed and the same need not be registered and
shall be taken out of the file of this Court.”
16. In the case of Basawaraj (supra), the Hon’ble
Supreme Court summarised the principles of sufficient cause in
Paragraph No.15, and observed as hereunder:-
“15. The law on the issue can be summarised to the
effect that where a case has been presented in the
court beyond limitation, the applicant has to
explain the court as to what was the “sufficient
cause” which means an adequate and enough
reason which prevented him to approach the court
within limitation. In case a party is found to be
negligent, or for want of bona fide on his part in the
facts and circumstances of the case, or found to
have not acted diligently or remained inactive,
there cannot be a justified ground to condone the
delay. No court could be justified in condoning
such an inordinate delay by imposing any
condition whatsoever. The application is to be
decided only within the parameters laid down by
this Court in regard to the condonation of delay. In
case there was no sufficient cause to prevent a
litigant to approach the court on time condoning
the delay without any justification, putting any
condition whatsoever, amounts to passing an order
in violation of the statutory provisions and it
tantamounts to showing utter disregard to the
legislature.”
17. Undoubtedly, when a litigation is stopped on the
ground of delay, it does not permit the parties to contest the case
on merits. Its effects are always left open.
18. In the case of Collector, Land Acquisition,
Anantnag and Another v. Mst. Katiji and Others, (1987) 2 SCC
107, the Hon’ble Supreme Court has discussed these principles,
and in Para 3 of the judgment and observed as below:-
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“3. The legislature has conferred the power to
condone delay by enacting Section 5 [ Any appeal
or any application, other than an application under
any of the provisions of Order XXI of the Code of
Civil Procedure, 1908, may be admitted after the
prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for
not preferring the appeal or making the application
within such period.] of the Indian Limitation Act of
1963 in order to enable the courts to do
substantial justice to parties by disposing of
matters on “merits”. The expression “sufficient
cause” employed by the legislature is adequately
elastic to enable the courts to apply the law in a
meaningful manner which subserves the ends of
justice — that being the life-purpose for the
existence of the institution of courts. It is common
knowledge that this Court has been making a
justifiably liberal approach in matters instituted in
this Court. But the message does not appear to
have percolated down to all the other courts in the
hierarchy. And such a liberal approach is adopted
on principle as it is realized that:
“1. Ordinarily a litigant does not stand to
benefit by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the
very threshold and cause of justice being
defeated. As against this when delay is
condoned the highest that can happen is that
a cause would be decided on merits after
hearing the parties.
3. “Every day’s delay must be explained” does
not mean that a pedantic approach should be
made. Why not every hour’s delay, every
second’s delay? The doctrine must be applied
in a rational common sense pragmatic
manner.
4. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to
have vested right in injustice being done
because of a non-deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala
fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious
risk.
6. It must be grasped that judiciary is
respected not on account of its power to
legalize injustice on technical grounds but
because it is capable of removing injustice
and is expected to do so.
………………………………………………………………….
………………………………………………………………….
…………………………………………………….”
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19. This Court proceeds to decide the first substantial
question of law, which is as below:-
“(i). Whether the First Appellate Court adopt a liberal
approach in considering application for
condonation of delay on ground of substantial
cause under Section 5 of the Limitation Act?”
20. It has been the case of the appellants that after
passing of the judgment and decree on 03.04.2001 in the suit, the
lawyer representing the appellants, Mr. M.P. Awasthi, Advocate,
passed away on 15.04.2001. Therefore, on time, appeal could not
be filed.
21. Another ground that has been taken in the
affidavit accompanying the delay condonation application is that
the appellant no.2 was unwell since 1995. A medical certificate
dated 24.09.2005 of one Zahid Hussain has been filed, which was
issued by Prof. S.C. Manchanda, Senior Consultant Cardiologist,
Sir Ganga Ram Hospital, New Delhi.
22. Learned Senior Counsel appearing for the
respondent has two fold objections to it. According to him, as per
affidavit accompanying the delay condonation application, it is the
appellant Tahir Hussain, who was unwell. But his medical
certificate has not been filed, and second, there is no death
certificate of Mr. M.P. Awasthi, Advocate.
23. In reply to it, learned counsel for the appellants
submits that the point no.2 in the affidavit of Tahir Hussain
accompanying the delay condonation application, it is
categorically stated that the medical certificate of the deponent is
enclosed; in fact, it was a typographical error; it is not the
appellant Tahir Hussain, who was suffering with cardiac disease.
It is his father, Zahid Hussain, who was suffering with cardiac
disease, and accordingly, the medical certificate of his father was
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enclosed, and this has been strictly read by the first appellate
court, and a genuine interpretation has not been given to it.
24. Insofar as the death of Mr. M.P. Awasthi,
Advocate, is concerned, it is argued that it is not denied by the
respondents. In fact, in Para No.4 of their affidavit, they record
that it has nothing to do with the delay condonation application.
25. The appellant no.2, Tahir Hussain, in his affidavit
writes that he was unwell for a long and a medical certificate was
enclosed. In fact, the medical certificate is of Zahid Hussain, who,
it is stated, is the father of the appellant Tahir Hussain. Both
documents ought to have been read together to give a life to both
of them, which was not done in the instant case. A liberal
approach has not been taken. In fact, a much pedantic approach
has been taken.
26. Insofar as the death certificate of Mr. M.P.
Awasthi, Advocate, is concerned, at times it would be considered
too much to ask from a party to file the death certificate,
particularly, when the factum of death has not been denied.
27. In the instant case, it has been the case of the
appellant no.2, Tahir Hussain, that his lawyer expired on
15.04.2001, and this fact is not denied.
28. At the cost of repetition, it may be reiterated in
Para No.4 of his affidavit accompanying the objections, the
respondent has stated that, “It is wrong, false and denied that the
expiry of Shri M.P. Awasthi, Advocate has anything do with the
decree or the delay in preferring the appeal.” It has much to do
because the trial court has delivered the judgment and decree on
03.01.2001. If on 15.04.2001, the lawyer of the appellants had
died, it cannot be said that it has nothing to do with the preferring
appeal.
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29. Having considered, this Court is of the view that,
in fact, the court below has not taken a liberal approach in
considering the application for condonation of delay. The
application for condonation of delay ought to have been allowed.
Accordingly, the order dated 01.10.2014, passed in R.M. No.745
of 2005, M/s Zaz Sons Export Pvt. Ltd. and another v. Akhil
Kumar Gupta, by the court of VI Additional District Judge,
Dehradun, is liable to be set aside.
30. The order dated 01.10.2014, passed in R.M.
No.745 of 2005, M/s Zaz Sons Export Pvt. Ltd. and another v.
Akhil Kumar Gupta, by the court of VI Additional District Judge,
Dehradun, is set aside
31. The delay condonation application is allowed. The
matter is remanded to the first appellate court to decide the
appeal on merits.
32. The first substantial question of law is decided
accordingly.
33. On the second substantial question of law, learned
counsel for both the parties are in agreement that dismissal of
first appeal, as barred by time, amounts to confirmation of decree.
In fact, this second substantial question of law does not require
any deliberation. It is an accepted phenomenon.
34. The third and fourth substantial questions of law
touch the merits of the case. Since, while recording the finding on
the first substantial question of law, this Court has already
remitted the matter for decision afresh on merits to the first
appellate court, there is no occasion to record any finding on the
third and fourth substantial questions of law.
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35. The second appeal is decided accordingly.
36. The parties shall appear personally or through
their respective Advocates before the court of District Judge,
Dehradun on 04.08.2026.
(Ravindra Maithani, J.)
09.07.2026
Ravi Bisht
