Gujarat High Court
Madhya Gujarat Vij Company Limited vs Kailashben Yogendra Shankar Pandya on 6 January, 2021
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
C/SCA/4433/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4433 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MADHYA GUJARAT VIJ COMPANY LIMITED
Versus
KAILASHBEN YOGENDRA SHANKAR PANDYA
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Appearance:
MR VIRAL J DAVE(5751) for the Petitioner(s) No. 1
MR PARESH M DARJI(3700) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 06/01/2021
ORAL JUDGMENT
1. Heard learned Advocate Mr. Viral J. Dave for the Petitioner and learned Advocate Mr. Paresh M. Darji for the Respondent through video conference.
2. The Petitioner has filed this Petition under Articles 14, 21 and 227 of the Constitution of India challenging the order passed by the learned 6th Additional District Judge, Kheda at Nadiad, in Civil Miscellaneous Application Page 1 of 7 Downloaded on : Fri Jan 08 01:20:38 IST 2021 C/SCA/4433/2020 JUDGMENT No. 111/2019 dated 12.7.2019 whereby the learned Additional District Judge has rejected the Civil Misc. Application for condonation of delay in filing the Appeal.
3. The Petitioner herein has filed Appeal challenging the judgment and decree dated 1.1.2019 passed by the learned Principal Senior Civil Judge, Nadiad in Regular Civil Suit No. 105 / 2015. The delay in preferring the Appeal is 4 months and seven days.
4. Learned Advocate for the Petitioner has submitted that there is an error apparent on the face of the record and the order passed by the learned Judge is ex facie bad and illegal and is not tenable in the eye of law. That the learned Judge ought to have considered the fact that the delay has occurred due to the process of getting approval from higher authority for filing appeal before he appellate court. That the Advocate was busy and therefore he could not collect the certified copy immediately. That the petitioner has received the copy of the judgment and decree along with the opinion of the lower court panel Advocate on 30.3.2019 and thereafter the petitioner had initiated the process for getting approval for filing appeal before the appellate court. It is further submitted that the petitioner sent the papers for approval to the divisional office on 8.4.2019 and thereafter the divisional office sent the papers for approval to the corporate office on 15.4.2019 and thereafter the corporate office granted approval for filing appeal before this Hon'ble Court on 2.5.2019 and thereafter the petitioner sent the papers to the lower court panel Advocate on 4.5.2019 for filing Appeal against the judgment of the trial court and thereafter the trial court Advocate filed Appeal before the Appellate Court on 10.5.2019.
4.1 Learned Advocate for the Petitioner has therefore submitted that the aforesaid entire process for filing the Appeal before the Appellate Court, some time was spent and delay had occurred in preferring the Appeal. He has therefore prayed to allow the present Petition and condone the delay in preferring the Appeal.
Page 2 of 7 Downloaded on : Fri Jan 08 01:20:38 IST 2021C/SCA/4433/2020 JUDGMENT 4.2 In support of the aforesaid submission, learned Advocate for the
Petitioner has placed reliance on Section 5 of the Limitation Act which says that if the court is satisfied that there is sufficient cause for not preferring the Appeal, Section 5 of the Limitation Act is an exception to general rule contained in Section 3 and would dilute the rigour of Section 3. Although 'sufficient cause' is not defined in the Limitation Act, but it was ruled by various Hon'ble High Courts and Hon'ble Apex Court that 'sufficient cause' is as cause which is beyond the control of the party and due to unavoidable circumstances, the party could not prefer the appeal within the prescribed time.
4.3 Learned Advocate for the Petitioner has placed reliance on the following judgments before the learned trial court:
(I) Basawaraj and Another v. Special Land Acquisition Officer reported in AIR 2014 SC 746.
(ii) P.K.Ramchandran v. State of Keral reported in AIR 1998 SC 2275.
(iii) Chief Post Manager General & Ors. v. Living Media India Ltd. & Anr. reported in 2012 (3) SCC 563.
(iv) The State of Bihar & Ors. v. Deo Kumar Singh & Ors. - SLP (Civil) No. 13348/2019 decided on 9.5.2019.
5. Per contra, learned Advocate for the Respondent has heavily opposed the petition and submitted that if the Hon'ble Court is inclined to grant the petition in that case heavy cost may be imposed and the Appeal may be ordered to be expedited.
6. Having heard the the arguments advanced by learned Advocate for the Petitioner - every case is required to be decided on merits rather than on technicality. Further, the Petitioner herein has sought the opinion from the superior authorities and therefore naturally, it took time. Moreover, herein the present petition, the delay is of four months and seven days which is not a huge Page 3 of 7 Downloaded on : Fri Jan 08 01:20:38 IST 2021 C/SCA/4433/2020 JUDGMENT delay. Therefore, if there is some delay due to some sufficient cause, in that case, petition is required to be allowed, especially when, in the government department or in the semi Government Department, where files move from one branch to another branch and from one section to another section, which takes time and ultimately cause delay. In the case on hand, it is stated in the original application that the delay is caused due to requisite permission from the higher Office for proceeding further in the matter and therefore, it caused delay of four months and seven days, which is not a huge delay. Not only that delay occurred due to sufficient cause and hence application is required to be allowed. The prime purpose for which Section 5 of the Limitation Act, 1963 was enacted is to enable the Court to do substantial justice and that is the prime reason why very elastic expression, sufficient cause employed there in so as to sub-serve the ends of justice Section 5.
7. This Court has considered the judgment passed by the co-ordinate bench reported in 2017 Law Suit (Guj) 1947 in the case of Mafatlal Apparels v. Akbarbhai Ganibhai Saiyed & Ors. wherein it is observed as under:
"As far as the decisions relied upon by Mr. Dave the same are not applicable to the facts of the present case since in the reference, the case of the employees was being represented by Union leader and he informed the employees to remain present only when called for. They were never aware about dismissal of the reference and where never informed that the reference was dismissed for want of prosecution. The Coordinate Bench of this Court in case of Rajesh Pukhraj Chauhan v. Sinter Plast Containers and another has held that it is trite that a litigant is permitted to litigate for his rights by having a decision from the Court of law on merits, rather than he is ousted on technical ground. A liberal approach is not out of place."
7.1 Further, this Court has also gone through the order passed by the coordinate bench in the following two judgments;
(i) Cadila Pharmaceuticals Pvt. Ltd. v. Union of India Ministry of Chemicals & Ferti & Another - 2017 Law Suit (Guj) 1664.
(ii) Hansa Govindbhai Patel v. Shree Vidhyadham Cooperative Housing Society Ltd. - 2017 Law Suit (Guj) 1625.
Page 4 of 7 Downloaded on : Fri Jan 08 01:20:38 IST 2021C/SCA/4433/2020 JUDGMENT
8. Further, this court has also considered the judgment reported in 1987 Law Suit (SC) 214 in case of Collector, Land Acquisition, Anantnag v. Mst Katiji, wherein it is observed as under:
"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 threshold and cause of justice being defeated. As against this when delay is con- doned 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.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a liti- gant, are accorded the same treatment and the law is admin- istered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experi- ence shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the in-herited bureaucratic methodology imbued with the note-mak- ing, file pushing, Page 5 of 7 Downloaded on : Fri Jan 08 01:20:38 IST 2021 C/SCA/4433/2020 JUDGMENT and passing-on-the-buck ethos, delay on its part is less difficult to understand though more diffi- cult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "suffi- cient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. Appeal is allowed accordingly. No costs."
9. This court has also further gone through the judgment in case of Husainbhai Taherali Amlani v. Ramjanbhai Maganlal Dani reported in 2015 Law Suit (Guj) 2297 wherein it is observed as under:
"There is no strait jacket formula to consider the sufficient cause for condoning delay. Therefore, if petitioner could remain present to proceed in the suit and though the Trial Judge refused to condone the delay, the fact remains that in such situation it would be appropriate to allow the petitioner to defend the suit, since the suit was decreed ex-parte against him in his absence. It is well settled position that the term ex-parte is being used for both the situations i.e. when the litigant is not served at all and even when though served, he could not defend the litigation for one or another reason.
Therefore, it would not be appropriate to enter into such technicalities in deciding such application. Though the law relating to condonation of delay is now attracting strict view, it cannot be ignored that otherwise it requires liberal consideration which can be referred in the form of following citations:
(i) In the case of Dakshin Gujarat Vij Company Ltd. Through Managing Director Vs. Amardeep Association, Navsari and others 2013 2 GLR 1399. The Division Bench of this Court has observed as under and such observation has been approved by Hon'ble Apex Court in SLP (Civil) No. 12142 of 2013 between the same parties.
"14. There are catena of judgments, more particularly when 'sufficient cause' and reasonable ground are not defined under the law, that in general, the dispute shall be resolved on its own merits rather than Page 6 of 7 Downloaded on : Fri Jan 08 01:20:38 IST 2021 C/SCA/4433/2020 JUDGMENT technicalities and that, therefore, 'sufficient cause' and 'reasonable ground' for condonation of delay cannot be defined in any narrow manner and thereby there cannot be straijacket formula that what is 'sufficient cause' and what is 'reasonable ground' for condonation of delay, it goes without saying that 'sufficient cause' and 'reasonable ground' may be different from case to case and though particular cause or ground may not sufficient and reasonable to condone the delay in a particular case, similar ground or cause may be sufficient and reasonable enough to condone the delay in any other given case, if on judicial scrutiny of matter, it is so found by the competent Court to condone such delay."
10. In the result, the petition succeeds and accordingly stands allowed. The impugned order dated 12.7.2019 passed by the learned 6th Additional District Judge, Kheda in Civil Miscellaneous Application No. 111/2019 is quashed and set aside. The delay in filing the appeal against the judgment dated 1.1.2019 in Regular Civil Suit No. 105 of 2015 is condoned resulting into allowing the Civil Misc. Application No. 111/2019 as prayed for. The Appellate Court may decide the Appeal at the earliest.
11. Rule is made absolute accordingly. No order as to costs.
(DR. ASHOKKUMAR C. JOSHI,J) J.N. W Page 7 of 7 Downloaded on : Fri Jan 08 01:20:38 IST 2021