Gujarat High Court
Vijaybhai Anubhai vs Rahul Chandrakantbhai on 26 July, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/CA/3286/2019 ORDER DATED: 26/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 3286 of 2019
In F/FIRST APPEAL NO. 25106 of 2019
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VIJAYBHAI ANUBHAI
Versus
RAHUL CHANDRAKANTBHAI
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Appearance:
MS AMRITA AJMERA(5204) for the Applicant(s) No. 1
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 3
NOTICE ISSUED BY PUBLICATION for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/07/2022
ORAL ORDER
1. Attempt has been made to serve respondents nos.1 and 2 but without any success, earlier prayer was granted for substitute service by publication in official gazette. However, the same could not be processed timely.
2. Present application is for condonation of delay of 22 days in filing the First Appeal. The Insurance Company is already served and represented by learned advocate.
3. Whether the discretion is to be exercised for condoning the delay is to be considered by taking into account the facts of the case and this aspect is between the Court and the litigant.
4. In the case of State of Gujarat vs. Koli Mohan Nanubhai and Others reported in 1997 (1) GCD 890, the Page 1 of 4 Downloaded on : Thu Jul 28 20:59:09 IST 2022 C/CA/3286/2019 ORDER DATED: 26/07/2022 Division Bench of this Court has held that condonation of delay is essentially always a matter strictly between the applicant and the Court and the other side has indeed no business to claim to be heard at this stage. By deciding, allowing the delay condonation application, Court is not remotely even touching the merits of the case as decided in favour of other side.
5. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in AIR 1987 SC 1353 it has been observed as under :-
"3. The legislature has conferred the power to condone delay by enacting Section 5 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 sub-serves 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 Page 2 of 4 Downloaded on : Thu Jul 28 20:59:09 IST 2022 C/CA/3286/2019 ORDER DATED: 26/07/2022 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."
5. This Court does not deem necessary to hear respondents nos.1 and 2 who are driver and owner as the contesting insurance company is served and are being represented.
6. Considering the averments made in the application and as the delay is sufficiently explained and in view of the facts and circumstances of the case, present application is allowed Page 3 of 4 Downloaded on : Thu Jul 28 20:59:09 IST 2022 C/CA/3286/2019 ORDER DATED: 26/07/2022 in terms of para5(b) of the application. The delay of 22 days caused in filing the First Appeal is condoned. Rule is made absolute to accordingly.
(GITA GOPI,J) ILA Page 4 of 4 Downloaded on : Thu Jul 28 20:59:09 IST 2022