Limitation | Restoration After 14 Years Without Hearing Opponent Is Legally Unsustainable – Supreme Court Remits Matter for Fresh Consideration

“Time Doesn’t Stand Still”: Supreme Court Sets Aside Condonation of 5,250 Days Delay, Flags Presumption of Third-Party Rights in Restoration Cases. In a significant judgment Supreme Court of India allowed the appeal filed by M/s Sethia Infrastructure Pvt. Ltd., setting aside the Bombay High Court's order that had condoned a delay of 5,250 days (over 14 years) in restoring a First Appeal dismissed for non-prosecution. The Court ruled that "time does not stand still" and held that such inordinate delay must be scrutinized rigorously, particularly when third-party rights may have arisen in the intervening period.

The decision emphasizes the judiciary’s obligation to ensure natural justice, especially when a restoration is ordered ex parte, without proper service or opportunity to the party whose rights are being affected.

The litigation originated from a civil suit filed by respondents Mafatlal Mangilal Kothari and another, seeking eviction from a property. The suit was dismissed by the trial court on 7 July 1988, following which a First Appeal (No. 1483 of 1988) was filed before the Bombay High Court.

That appeal remained pending for nearly two decades and was deemed dismissed for non-prosecution on 20 May 2008, in view of a conditional order passed by the High Court on 20 February 2008. The order had stipulated that:

“If compilation of pleadings is not filed by the appellants within a period of three months from today, the Appeal will stand dismissed for non-prosecution without further reference to the Court.”

The plaintiffs neither filed the compilation nor took any step for over 14 years. It was only in 2022 that they filed an application for restoration of the appeal, accompanied by a plea to condone the delay of 5,250 days.

The High Court, on 25 October 2023, allowed this restoration, solely relying on an affidavit of private service, without issuing notice to the developer, M/s Sethia Infrastructure, who had purchased and begun construction on the disputed land after the dismissal of the appeal.

1. Was the High Court justified in condoning such a long delay without hearing the affected party?

The Supreme Court held the High Court's approach to be legally unsustainable, observing:

“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.”

The Court made it clear that private service affidavits are insufficient when rights of third parties are involved. The respondent-developers were neither served properly nor heard, and yet the appeal was restored.

“Restoration was granted in absence of non-applicants based only on affidavit of private service.”

2. What is the Court's duty when faced with inordinate delay?

The Court invoked a fundamental principle of limitation law:

“Whenever delay of a long period of time is sought to be condoned, 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 warned that courts must not condone delays mechanically, especially in property matters, where development may have taken place.

“Time does not stand still... Courts should not rule out involvement of third parties in the litigation.”

It was also noted that: “Respondent has woken up from his ‘alleged slumber’ as the appellant/developer has stepped in and is carrying out construction at site on a mega scale.”

The Supreme Court was categorical in its condemnation of the High Court’s procedural lapse:

“The impugned order passed by the High Court cannot be legally sustained. The same is accordingly set aside.”

While allowing the appeal, the Court remitted the matter to the High Court with a clear direction:

“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.”

The Supreme Court further directed all parties to appear before the High Court on 2 September 2025, and asked the matter to be listed as per roster.

The judgment is a clear message from the Supreme Court on two crucial aspects: procedural fairness and the doctrine of prejudice caused by delay. By emphasizing that private affidavits of service cannot override the right to a fair hearing, the Court reaffirms that natural justice is central to judicial restoration.

Moreover, in an era where property rights often transfer during the pendency of litigation, the ruling acknowledges that third-party interests must be respected, and long-pending cases cannot be revived without first testing their impact on current realities.

This decision will have a significant bearing on future restoration applications involving long delays, and reinforces the principle that law cannot ignore the passage of time and the consequences that flow from it.

Date of Decision: 14 August 2025