Supreme Court Sets Aside High Court Order Restoring Long‑Dismissed Appeal and Remits Matter for Fresh Condonation Hearing

A bench of Justices Rajesh Bindal and Manmohan heard an appeal against a Bombay High Court order dated 25.10.2023 which had condoned a delay of 5,250 days in filing an application for restoration of an appeal and directed restoration of the first appeal for decision on merits without hearing the non‑applicants. The question before the Supreme Court concerned the propriety of allowing restoration after such a long delay and the failure to hear the party claiming to have developed rights in the property during the intervening period.

The Supreme Court allowed the appeal, held that the impugned High Court order could not be legally sustained, set it aside and remitted the matter to the High Court for fresh consideration of the condonation application after hearing the appellant/developer who had intervened in the property. The Court observed that when long delay was sought to be condoned a court must be aware that "time does not stand still" and that third‑party rights may have arisen; it directed that the developer could be impleaded if necessary and listed the matter for appearance before the High Court. The Court, in its reasoning, observed: "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." The Court also noted that, on the face of records, the respondent had "woken up from his ‘alleged slumber’" while large‑scale construction by the developer had proceeded on the site.

Background The dispute originated from Original Suit No. 289 of 1967 in which respondent Nos. 1 and 2 sought eviction; the suit was dismissed by the trial court by judgment and decree dated 07.07.1988. The plaintiffs (respondents in the present appeal) prosecuted First Appeal No. 1483 of 1988, which was admitted on 07.03.1989. The High Court listed the appeal on 20.02.2008 and directed that the compilation of pleadings be filed within three months, failing which the appeal would stand dismissed for non‑prosecution. The appeal was consequently deemed dismissed for non‑prosecution three months thereafter.

Respondent Nos. 1 and 2 filed an application for restoration accompanied by a prayer for condonation of a delay of 5,250 days. The High Court allowed the application on the basis that respondents were "duly served by private service" and by reference to a reported ratio ((2008) 11 S.C.R. 1), restoring the appeal in the absence of representation by the non‑applicants and without assigning reasons for condoning the long delay. The Supreme Court recorded that third‑party rights had, on the record, been created in the property during the period when the appeal remained dismissed and that the High Court had not addressed the implications of such developments.

The Supreme Court held that the High Court ought to have considered the possibility of third‑party interests and ought to have heard the appellant/developer before condoning such an extensive delay. The impugned order was set aside, the civil appeal was allowed and the matter was remitted to the High Court to decide the condonation application afresh after hearing the appellant/developer, who may be impleaded if necessary. The Court directed appearance before the High Court on 02.09.2025 and disposed of pending applications.

Case No.: 2025 INSC 985 Case Title: M/s. Sethia Infrastructure Pvt. Ltd. v. Mafatlal Mangilal Kothari and Ors. Appearances: (List advocates if available, for both sides using the format) For the Petitioner(s): Advocates not indicated in the judgment For the Respondent(s): Advocates not indicated in the judgment