Gujarat High Court
Mahadev Mohandas Rajani vs Jeram Mohandas Rajani, Since Decd. ... on 19 April, 2018
Author: A.J.Shastri
Bench: A.J. Shastri
C/CRA/240/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 240 of 2018
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MAHADEV MOHANDAS RAJANI
Versus
JERAM MOHANDAS RAJANI, SINCE DECD. THROUGH HEIRS
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Appearance:
MR.MEHUL SHAH, SENIOR COUNSEL WITH JENIL M SHAH(7840) for the
PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,6
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1.1,2,3,4,5
SERVED BY RPAD (R)(66) for the RESPONDENT(s) No. 1.2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 19/04/2018
ORAL ORDER
[1] The present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 is filed for the purpose of challenging the legality and validity of the order passed by the learned 2nd Additional District Judge, Gandhidham in Civil Misc. Application No.317 of 2009.
[2] The case of the petitioner is that the present petitioner, original applicant, is the son of Late Mohandas Rajani, who filed an application being Civil Misc. Application No.9 of 1997 seeking a probate certificate in respect of a registered Will dated 16.11.1990 before the learned Principal Senior Civil Judge, Gandhidham on 15.02.1997. The said application came to be rejected vide order dated 24.06.2009. As a result of this, being aggrieved and dissatisfied with the same, Regular Civil Appeal was preferred. However, on account of that interregnum, there was a delay of 57 days in preferring appeal, an application was submitted being Civil Misc. Application No.317 of 2009 seeking Page 1 of 4 C/CRA/240/2018 ORDER condonation of delay. The said application came to be rejected by the learned Judge vide order dated 06.02.2018, which is made the subject matter of present Civil Revision Application.
[3] Mr.Mehul Shah, learned senior counsel with Mr.Jenil M.Shah, learned advocate appearing for the petitioner has contended that there was a delay only 57 days in preferring an appeal before the appellate forum. It has been contended that the appeal being a statutory right of applicant, the same should not have been curtailed on account of any hyper technicality. It has also been pointed out that this mere delay of 57 days was not on account of any deliberate intent or to delay the proceeding. On the contrary, in absence of any mala fide, the learned Judge ought to have considered the main matter instead of hyper technicality.
[4] Considering the aforesaid submissions, the Court has been drawn the attention to the explanation of delay, which has been submitted by the learned advocate which reveals prima facie that no such deliberate intent in causing 57 days is reflecting. It has also been submitted by learned senior counsel Mr.Shah that on account of soliciting the advice of the lawyers of the High Court, this delay has occurred which was beyond the control of the applicant. Hence, in the absence of any mala fide intent, this delay ought to have been condoned.
[5] Considering the submissions made by learned advocate, it has been noticed that respondents herein have been served the process of this Court and affidavit of service is also filed in the department and despite the fact that an earlier occasion also, nobody has remained present, as a result of this, Page 2 of 4 C/CRA/240/2018 ORDER the Court deems it proper to take up the matter for final disposal, as the respondents have chosen not to appear.
[6] Considering the circumstances which are reflecting for seeking condonation of delay and in view of the reasons which are assigned by the learned Judge, the Court deems it proper that instead of technicality the substantial justice must be given predominance without hyper technicality and it is settled position of law that delay normally to be construed liberally. In view of the settled principle of law that when technical consideration is pitted against substantial justice, substantial justice must be given a pre-dominance. Considering the decision delivered by Hon'ble Apex Court in the case of K.Subbarayudu & Ors. versus The Special Deputy Collector reported in (2017) 12 SCC 840, this Court is of the opinion that exercise of jurisdiction by the learned Judge is misconceived and the same is backed by no valid reasons. Accordingly, the Court deems it proper to quash and set aside the impugned order and condone the delay of 57 days which has occurred in preferring appeal against the original order. The following observations of Hon'ble Apex Court are kept in mind while disposing of revision application, the same are reproduced hereinafter:
"11. The term "sufficient cause" is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fide is attributable to the appellants, the Court should adopt a justice-oriented approach in condoning the delay. In State of Nagaland v. Lipok AO and Others (2005) 3 SCC 752: 2005 (4) JT 10, it was held as under:-
Page 3 of 4 C/CRA/240/2018 ORDER
"Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go into the position of the person concerned and to find out if they delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient". "
[7] In view of the proposition of law laid down by the Hon'ble Apex Court and in view of the fact that there is no deliberate intention reflecting from the record, the delay of 57 days is condoned.
[8] At the end of the order, Mr.Shah, learned senior counsel for the petitioner has submitted that since the original proceedings have been initiated before the appellate Court in the year 2009 and considerable time has been elapsed on account of this technicality, the appeal proceedings which are to be taken on file now may be expedited.
[9] It is observed that it would be open for the applicant to submit such application for expeditious disposal of the appeal and as and when the same is submitted, it would be open for the learned Appellate Judge to consider and grant priority to the matter.
[10] With these observations, Civil Revision Application is allowed. Rule is made absolute.
(A.J.SHASTRI ,J) dharmendra Page 4 of 4