Supreme Court Sets Aside Bombay HC Order Reviving Appeal After Huge Delay
The Supreme Court on August 14, 2025, underscored that when a court considers restoration of a case after an inordinate delay, it must be mindful that the passage of time could have resulted in creation of third-party rights and interests. The Court observed that such rights cannot be ignored while deciding applications for condonation of delay and restoration.
A Bench of Justices Rajesh Bindal and Manmohan set aside a Bombay High Court order dated October 25, 2023, which had condoned a delay of 5,250 days in filing an application for restoration and ordered revival of a decades-old first appeal.
The Supreme Court disapproved of this approach, stressing that judicial discretion in condoning long delays must be exercised with caution.
The Bench noted that after the dismissal of the appeal in 2008, third-party rights had come into existence in the disputed property. The appellant-developer, M/s Sethia Infrastructure Pvt. Ltd., claimed to have begun large-scale construction during this intervening period.
The Court 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 Bench further observed that the respondent appeared to have woken up from his “alleged slumber” only because the developer had stepped in and was carrying out construction on a mega scale.
Holding that the High Court’s order “cannot be legally sustained,” the Supreme Court set it aside.
The matter was remitted to the Bombay High Court with a direction to reconsider the application for condonation of delay afresh. The High Court was asked to hear the appellant-developer, who had invested in development of the suit property while the appeal remained dismissed. If necessary, the developer may also be impleaded as a party to the proceedings.
The parties were directed to appear before the High Court on September 2, 2025.
Brief Background
On October 25, 2023, the Bombay High Court had condoned the delay and ordered restoration of the first appeal. The order, passed in Interim Application No. 19020 of 2022, read:
“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. 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).”
The High Court thus restored the appeal on merits without recording detailed reasons or considering the rights of non-applicants.
The litigation originated in Original Suit No. 289 of 1967, filed by respondent Nos. 1 and 2 seeking eviction of the defendants from the disputed property.
The trial court dismissed the suit on July 7, 1988, following which the plaintiffs preferred First Appeal No. 1483 of 1988 before the Bombay High Court.
On February 20, 2008, the High Court directed that if 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 the record indicated non-compliance, the appeal stood dismissed on May 20, 2008. Over a decade later, the original plaintiffs filed an application seeking restoration of the appeal, along with a prayer to condone a massive delay of 5,250 days.
Case Title: M/s Sethia Infrastructure Pvt. Ltd. v. Mafatlal Mangilal Kothari and Ors.
Date of Judgment: August 14, 2025
Bench: Justices Rajesh Bindal and Manmohan