Gujarat High Court
Kirtibhai Mansukhbhai Raval vs Raghuram Jaisukhram Chandrani on 6 August, 2018
Author: J.B. Pardiwala
Bench: J.B.Pardiwala
C/FA/2517/2017 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 2 of 2017
in
F/FIRST APPEAL NO. 2517 of 2017
==========================================================
KIRTIBHAI MANSUKHBHAI RAVAL & 1... Petitioners Versus RAGHURAM JAISUKHRAM CHANDRANI... Respondent ========================================================== Appearance:
MR ABHISHEK M MEHTA for the PETITIONER(s) No. MR UNMESH SHUKLA, ADVOCATE WITH MR PRATIK Y JASANI for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/08/2018 IA ORDER 1 This is an application at the instance of the original appellants defendants Nos.1 and 2 for condonation of delay of 155 days in preferring First Appeal under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 13th January 2017 passed by the City Civil Court, Ahmedabad in the Civil Suit No.207 of 2007.
2 For the sake of convenience, the applicants herein shall be referred as the 'defendants' and the opponent herein shall be referred to as the 'plaintiff'.
3 The plaintiff instituted the Civil Suit No.207 of 2007 against the defendants for a declaration and permanent injunction. The suit filed by the plaintiff came to be allowed. The operative part of the judgment and order passed by the City Civil Court at Ahmedabad reads as under:
"ORDER The suit of plaintiff stands allowed.Page 1 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021
C/FA/2517/2017 IA ORDER [a] The relief of interim injunction granted vide order passed below Notice of Motion, hereby stands confirmed is accordingly was absolute.
[b] It is hereby declared that the defendants No.1 and 2 do not have any legal right, power, authority to make, release, publish, exhibit publicly or privately, sell, enter into film festival, promote, advertise or produced in any format or medium wholly or partially the film in the name of Jay Jalaram Bapa or otherwise, drama, serial or any other literary or artistic expression in respect of the life of late Jalaram Bapa and/or his family members and their direct descendants without the consent of the plaintiff.
[c] Further, the defendant no.1 and 2 are hereby restrained from making, releasing, publishing, exhibiting publicly or privately seeing, promoting or advertising or entering into film festivals or otherwise producing in any format any film, drama, serial or any other literary or artistic expression in respect of the life of late Jalaram Bapa and/or his family members and their direct descendants without the consent of the plaintiff.
[d] The suit stands disposed of as allowed. The defendants shall pay the cost of this suit to plaintiff and bear their own cost."
4 The defendants, being dissatisfied with the judgment and decree passed by the Trial Court, have preferred First Appeal under Section 96 of the C.P.C. However, there is a delay of 155 days in preferring the First Appeal. The defendants pray that the delay of 155 days in preferring the First Appeal be condoned and the First Appeal be heard on merits. In the application seeking condonation of delay, the following averments have been made:
"It is respectfully submitted that the applicants herein applied for the certified copy of the impugned judgment on 16.01.2017 and the same was made available to the advocate for the applicants on 03.02.2017. The advocate on receipt of the certified copy, contacted the applicants on or around 10.02.2017, however the applicants based in Mumbai cold not immediately come down to Ahmedabad due to personal reasons and came on or around 25.02.2017 to Ahmedabad to discuss the consequences of the judgment with their lawyer. Having procured the copy of the judgment and having gone through the same, the applicants got in touch with the lawyer to seek opinion regarding steps to be taken to challenge the same before this Hon'ble Court. Pursuant to the discussion, the applicants thereafter took a decision on 15.03.2017 to challenge the impugned Page 2 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER judgment before this Hon'ble Court and instructed the advocate to proceed with the preparation of the First Appeal. Since the record was not immediately available with the applicants, some time of around one month went in coordinating the same as the applicants were in Mumbai and not in Ahmedabad. The record was handed over to the lawyer on or around 20.04.2017. The lawyer undertook the exercise of going through the records and proceedings which took some time of around 1520 days in preparing and finalizing the subject appeal filed before this Hon'ble Court and the applicants thereafter came to Ahmedabad to complete the formalities in the month of May - 2017 and thereafter the said First Appeal came to be filed before this Hon'ble Court. While undertaking the aforesaid steps, some time was consumed, which was inadvertent and unintentional and there is some delay in the filing of the captioned First Appeal.
The applicants submit that the applicants have preferred the appeal at the earliest possible / permissible time, on coming to know about the aforesaid proceedings. The delay is inadvertent and there was no intention of abandoning the proceedings. If the delay is not condoned, the applicants will suffer irreparable injury as the impugned judgment is based on illegalities and affects the rights of the applicants and causes illegal injury and is required to be challenged before this Hon'ble Court.
The applicants further submit that the applicants have preferred the appeal in the facts narrated above after being aware of the developments. Therefore, however, primafacie appears the delay in preferring the appeal, though the applicants have approached this Hon'ble Court by preferring the appeal without any loss of time. In the larger interest of justice, therefore, the applicant humbly requests that this Hon'ble Court may be pleased to condone the delay of 94 days in approaching this Hon'ble Court."
5 It appears that in the application seeking condonation of delay, the delay is shown to be of 94 days in preferring the First Appeal. In the course of hearing of this application, I inquired with the learned counsel appearing for the defendants as to on what basis he has calculated the delay of 94 days. The learned counsel was under the impression that the period of limitation in filing First Appeal against the judgment and decree passed by a Civil Court is 90 days. However, this Court pointed out to the learned counsel that the judgment and decree, which has been impugned in the First Appeal, has been passed by the City Civil Court, Page 3 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER Ahmedabad and the Rules of the Ahmedabad City Civil Court provide period of limitation of 30 days in preferring the First Appeal.
6 In such circumstances referred to above, the learned counsel appearing for the defendants prayed for time to file an additional affidavit trying to explain the delay. The additional affidavit reads as under:
"3 That the applicant has stated in para 1 regarding the challenge in the captioned appeal to the judgment dated 13.1.2017 and the decree dated 30.1.2017 of the Civil Court No.15 at Ahmedabad.
4 In this regard it transpires that according to the opponent the delay has not been calculated properly which is 94 days and the said calculation is without considering the fact that the judgment and decree is that of City Civil Court, Ahmedabad which requires the period of limitation to be 30 days.
5 That in this regard, as stated in para 2, the following dates are important for the purpose of limitation.
Sr. Dates Particulars
No.
1 13.1.2017 The judgment in appeal was delivered on 13.1.2017
2 16.1.2017 Certified copy was applied on 16.1.2017
3 30.1.2017 Decree was drawn on 30.1.2017
4 '3.2.2017 The certified copy was made available to the advocate
on 3.2.2017
5 '10.2.2017 The advocate contacted the applicant on 10.2.2017
6 '25.2.2017 The applicant is residing in Mumbai (since 1988) and
was held up due to personal reason in view of the
applicant's mother aged more than 80 years who was
ailing / unwell and in an unpredictable situation at that point of time and the applicant's wife was at her father's residence as her mother had expired on 25.1.2017.
Moreover, the applicant had to make arrangements and request his sister to be with his mother who could not be left alone and thereafter travel to Amreli district, village Oliya for the purpose of attending Page 4 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER religious ceremony in view of demise of the applicant's mother in law. In such unavoidable circumstances, the applicant could come to Ahmedabad only on 25.2.2017 to meet the advocate and discuss regarding the judgment and further action to be taken in this regard.
7 '27.2.2017 The applicant approached certain advocates in Ahmedabad to discuss about the matter and thereafter returned to Mumbai and consulted his known advocate in Mumbai in respect of the merit of the matter and the probable fees and expenses generally charged for filing the matter before this Hon'ble Court. The applicant was not financially very sound so as to immediately shell out advocate's fees and expenses for the matter and therefore approached others so as to arrange for fees and expenses.
8 '15.3.2017 The applicant after looking at the options, instructed the advocate to proceed with the preparation of first appeal.
9 '20.4.2017 Since the record was bulky and the matter before the Trial Court had taken its own time over a period of 10 years starting from 2007 to 2017, sometime went in compiling the record which was thereafter handed over to the concerned advocate on 22.4.2017 who took some time for preparation of the first appeal. All through out, the applicant was constantly following up for the preparation of the record as also for the appeal which would be necessary for the effective adjudication before this Hon'ble Court.
10 'May 2017 The applicant thereafter came to Ahmedabad to complete the formalities in the end of month of May, 2017 and in June, 2017 i.e. on 14.6.2017, the application was affirmed.
11 'Aug 2017 Due to the closure of the Hon'ble Court for summer vacation, the appeal came to be subsequently filed.
6 That in the application as well as the affidavit in rejoinder and considering the present additional affidavit explaining the grounds for delay, it is evident that the delay has been sufficiently explained and there is no reason for respondent to contend hyper technically when the Hon'ble Court is considering delay condonation which has been explained date wise to satisfy the conscience of the Hon'ble Court and to do substantial justice. Even otherwise, without getting into the issue of whether the delay has been appropriately calculated or not, according to the applicant, the delay has been sufficiently explained by the applicant for which the Page 5 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER applicant has filed the present affidavit.
7 That in the aforesaid circumstances, the applicant without any intention of either delaying or abandoning the proceedings took steps to prefer the captioned appeal before this Hon'ble Court and whatever delay has occurred in doing so, is unintentional and beyond the control of the applicant and the applicant will suffer irreparable injury if the delay is not condoned. The applicant has an excellent case on merits with all probabilities to succeed before this Hon'ble Court and therefore prays that the delay that has occurred in preferring the appeal be condoned in the interest of justice."
7 Mr. Mehta, the learned counsel appearing for the defendants submitted that his clients have been able to assign sufficient cause for the delay, and therefore, the same may be condoned and the defendants may be given a chance to question the legality and validity of the judgment and decree passed by the City Civil Court on merits. The learned counsel submitted that the delay is not so gross or inordinate so as to say that the same does not deserve to be condoned.
8 In such circumstances referred to above, Mr. Mehta, the learned counsel prays that there being merit in this application, the same be allowed and the delay be condoned.
9 On the other hand, this application has been vehemently opposed by Mr. Unmesh Shukla, the learned counsel appearing for the original plaintiff. Mr. Shukla would submit that what is important is the acceptability of the explanation for the delay and not the length of delay. Mr. Shukla would submit that the acceptability of explanation for the delay is the sole criteria. The length of delay is not relevant. It is submitted that the explanation, which has been offered is nothing, but an eyewash. The defendants have not been able to assign any sufficient cause as to why they were not in a position to prefer the First Appeal within the period of limitation. Any explanation of delay beyond the Page 6 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER period of limitation pales into insignificance.
10 An affidavitinreply has been filed on behalf of the plaintiff opposing the prayer for condonation of delay inter alia stating as under:
"2 I say that the application for condonation of delay filed by the applicants herein is misconceived. I say and submit that the applicants herein have not approached this Hon'ble Court with clean hands and not only there is gross negligence on the part of the applicants in approaching this Hon'ble Court by way of abovereferred First Appeal, but there is also lack of bonafides on the part of the applicants.
3 I say and submit that the applicants have stated in the memo of application that the judgment and decree was passed by the Hon'ble Trial Court on 13.01.2017 and soon within 3 days, they have made an application for obtaining certified copy. I say and submit that it has been further mentioned by the applicants herein that the certified copy was delivered to the applicants on 03.02.2017. I say and submit that it has been further averred that the concerned advocate who represented them before the Hon'ble Trial Court intimated them regarding receipt of the order on 10.02.2017. It has been further stated that the applicants could not contact his lawyer and for "personal reasons", they could not come to Ahmedabad. It has been further stated that they could come Ahmedabad only on 25.02.2017 for discussing the consequences of the judgment with their lawyer and after discussions and obtaining opinion, the decision was taken by the applicants to prefer the First Appeal on 15.03.2017. It has been further stated by the applicants that on 15.03.2017, the concerned lawyer was instructed for preparing the First Appeal; however, and the record was not immediately available with the applicants, around one month went in coordinating as the applicants are residing in Mumbai. It has been further stated that the record was handed over to the concerned lawyer on or around 20.04.2017 and the lawyer took about 15 to 20 days in preparing and finalizing the appeal. It has been further stated that after preparation of the appeal, the applicants came Ahmedabad in the month of May, 2017 and thereafter, the appeal was filed before this Hon'ble Court. I say and submit that the appeal in question is notarized on 14.06.2017 and the same has been presented before this Hon'ble Court on 03.08.2017.
4 I say and submit that the abovereferred chronology of events narrated by the applicants herein shows absolute lethargy on their part in preferring the appeal beyond the period of limitation. I say and submit that the applicants were vigilant enough to apply the certified copy within 3 days i.e. the judgment and decree was passed by the Hon'ble Trial Court on 13.01.2017 and the application for certified copy was made on Page 7 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER 16.01.2017. I say and submit tht the certified copy was delivered on 03.02.2017 and the same was communicated to them on 10.02.2017. I say and submit that the applicants herein have made a specific reference about the personal difficulty, for which, they could not contact their lawyer and they could not come Ahmedabad. I say and submit that what was the personal difficulty which prevented the applicants to contact their lawyer in Ahmedabad or to visit Ahmedabad has not at all been explained by the applicants. I say and submit that the applicants have preferred the application without sufficiently explaining the cause for delay and rather have made loose averments and on this ground alone, the application for condonation of delay may not be entertained.
5 I say and submit that the application preferred by the applicants herein is neither bonafide, nor diligent. I say and submit that the chronology of events narrated by the applicants in their application itself suggest that there was gross negligence on the part of the applicants and have preferred the application without any diligence. I say and submit that it has been stated by the applicants that the judgment and decree was handed over to them on 25.02.2017 and the decision for preferring the appeal was taken on 15.03.2017. I say and submit that there is no explanation worth the name given by the applicants as to what prevented them from taking the decision at the earlier point of time and which were the circumstances which prevented them or which occupied the First Appeal. I say and submit that the abovereferred chronology would demonstrate the nonbonafide and sheer negligent approach of the applicants and therefore also, the application preferred by the applicants for condonation of delay may be dismissed.
6 I say and submit that it has been stated by the applicants that they took decision to prefer the appeal on 15.03.2017; however, it took one month time for them to procure the papers and coordinating with their lawyer. It has been further stated by the applicants that the papers were handed over to the lawyer for preparation of appeal on 20.04.2017. I say and submit that there are no averments in the application as to the requirement and need for procuring papers, which otherwise, was available with the applicants right from the beginning as the applicants have fully participated in the proceedings of the suit. I say and submit that there are no averments that the case papers pertaining to the suit were not available with the applicants. I say and submit that there are no averments in the application that the papers were never handed over by their lawyer to them and they had to procure it from other sources. I say and submit that the averments made in the application are absolutely vague and not bonafide and there is no believable explanation given by the applicants and therefore, on this ground alone, the application for condonation of delay may be dismissed.
7 I say and submit that the averments made in the application Page 8 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER
further reveal that the papers were handed over to the concerned lawyer for preparing the First Appeal on 02.204.2017 and it took 15 to 20 days for preparing the said appeal. It has been further mentioned in the application that the applicants came down for Ahmedabad for finalization of the appeal in the month of May, 2017. I say and submit that though it has been admitted by the applicants that they had already finalized the draft of appeal in the month of May 2017; however, the appeal was notarized only on 14.06.2017. I say and submit that there is no explanation worth the name given by the applicants as to how the delay occurred in notarizing the appeal in the month of June, 2017 when the appeal was already prepared in the month of May, 2017. I say and submit that though the appeal was notarized in the month of June, 2017, the same was presented before the Registry of this Hon'ble Court in August, 2017. I say and submit that the abovereferred chronology of events would demonstrate absolute culpable negligence on the part of the applicants in preferring the application for condonation of delay without sufficiently explaining the reasons for approaching this Hon'ble Court belatedly and therefore, the application for condonation of delay preferred by the applicants deserves to be dismissed."
11 In such circumstances referred to above, Mr. Shukla, the learned counsel submits that there being no merit in this application, the same be rejected.
12 An affidavitinrejoinder has been filed by the defendants to the affidavitinreply of the plaintiff inter alia stating as under:
"5 I say and submit that the delay which has occurred is unintentional and for reason beyond the control of the applicant. The chronology and steps taken after the passing of the judgment by the Trial Court has been explained and looking to the same, in the humble submission of the applicant, the delay is well explained. It is denied that there is any lethargy on the part of the applicants in preferring the appeal. The applicant No.1 is based out of Mumbai and is now residing in Mumbai since so many years and due to preoccupation with family related issues involving travelling at the relevant point of time, the applicant No.1 could not immediately come down to Ahmedabad to discuss the consequences of the judgment. Since the judgment was voluminous involving detailed appreciation of evidence of both the parties, it took some time for the applicants to take a decision to challenge the impugned judgment before this Hon'ble Court. I categorically deny the statement that the application has been preferred without sufficiently explained the cause of delay, and that loose averments have been made, and that the application for Page 9 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER condonation of delay may not be entertained.
6 It is denied that the application is neither bonafide nor diligent. It is denied that the chronology of events narrated by the applicant in their application itself suggests that there was gross negligence on the part of the applicants or that the application was preferred without any diligence. Since the judgment was voluminous and required the applicant to undertake a fullfledged exercise to undersign the legal intricacies including the factum of the evidence relied upon by the trial court while passing the judgment, took some time, which resulted in the applicant taking a decision on 15.3.2017 to challenge the judgment before this Hon'ble Court. The same is stated in the application for condonation of delay. I deny the statement made by the respondent that the applicant's approach is not bonafide and/or negligent or that the application for condonation of delay is to be dismissed.
7 The contents of para6 of the affidavit in reply is denied and not admitted. The aspect of the record being voluminous and lying with the trial Court's lawyer, wherein the applicants were in Mumbai and were required to coordinate and ensure that the complete record is handed over to the lawyer for preparation of the appeal to this Hon'ble Court. The trial which was initiated in 2007 came to be decided on 13.1.2017 taking precisely nine years, 11 months and 12 days to conclude. Throughout the trial, material evidence in the form of oral as well as documentary evidence was brought on record and witnesses were examined etc. The record was therefore required to be streamlined before being handed over for preparation of the appeal as is stated in the application for condonation of delay. The respondent has tried to raise frivolous, baseless and unjustified contentions which include hyper technical contentions which are required to be ignored and not taken into consideration while deciding an application for condonation of delay. In such circumstances, the averments contained in para 6 are without any merit and are required to be rejected.
8 The contents of para 7 are denied and not admitted. It is respectfully submitted that in all probabilities, due to the summer vacation in the Hon'ble Court, the appeal came to be filed subsequently. The sequence or chronology narrated in the civil application sufficiently and satisfactorily explains the delay caused in preferring the captioned appeal and the stand of the respondent in the affidavit in reply seems to be completely hyper technical in nature which is even otherwise without any basis and only raises frivolous issues to counter the genuine stand of the applicant in the application.
9 The contents of para 8, 9, 10,11, 12 and 13 are categorically denied and not admitted. The reference to the various judgments of the Hon'ble Supreme Court in the para under reply, are not applicable to the Page 10 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER facts of the present case. As submitted herein above, the applicants have satisfactorily explained the delay and the delay of .... days, which has occurred in preferring the captioned appeal, is inadvertent and unintentional and beyond the control of the applicant. That in the judgment of the State of Bihar and others v. Kameshwar Prasad Singh and others, (2000) 9 SCC 94, for the proposition that the power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to the parties by disposing of the matters on merits. That also in the decision of the Supreme Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, (1987) 2 SCC 107, wherein the Court had held that, the expression of "sufficient cause" employed by the legislature in the Limitation Act, is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of Courts. That also in the decision of the Supreme Court, Improvement Trust, Ludhiana v. Ujagar Singh and others, (2010) 6 SCC 786, for the proposition that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned.
10 The applicants humbly submit that the delay which has occurred in preferring the appeal be condoned in the interest of justice. No prejudice will be caused to the respondent if the delay is condoned, however if the delay is not condoned, the same will lead to gross prejudice being caused to the applicant who will lose their right and opportunity in law to contest the maintainability and veracity as well as legality of the judgment, which is impugned in the captioned appeal in the humble submission of the applicant, the delay ought to be condoned."
13 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for consideration is whether the delay of 155 days in preferring the First Appeal should be condoned.
14 Ordinarily, the Court should bear in mind the following principles, as reiterated by the Supreme Court time and again, while considering the plea for condonation of delay:
[1] Ordinarily a litigant does not stand to benefit by lodging an appeal late.Page 11 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021
C/FA/2517/2017 IA ORDER [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 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 condoned" does not mean that a pedantic unpragmatic 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, the cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a nondeliberate delay.
[5] There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. The presumption would be just the other way round.
[6] It is unreasonable to adopt the approach of a school master using his rod to discipline the student. One need not bend backwards in such matters. The attitude must be one informed with greatest awareness for the cause of justice.
[7] It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and expected to do so.Page 12 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021
C/FA/2517/2017 IA ORDER 15 In Esha Bhattacharjee vs. Managing Committee of
Raghunathpur Nafar Academy and others reported in (2013 ) 12 SCC 649, the Supreme Court has laid down in details the principles applicable to an application for condonation of delay. They are as follows:
"21.1. (i) There should be a liberal, pragmatic, justiceoriented, non pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
25.6 (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
25.7 (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
25.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the Page 13 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER first one warrants strict approach whereas the second calls for a liberal delineation.
25.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
25.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
25.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
25.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
25.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as Page 14 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
16 It is true that the acceptability of explanation for the delay should be the important criteria and the length of delay may not be relevant. In a given case, delay of a short period may not be liable to be condoned for want of bona fide and acceptable explanation. Whereas, in certain other cases, the delay of a very long period can be condoned if the explanation put forward is found to be satisfactory. In every case of delay, the Court will find some lapse on the part of the litigant concerned. However, that lapse is not enough to decline to condone the delay and put an end to the litigation for all times to come. In the case on hand, the civil suit was filed in the year 2007. It took almost one decade for the Court to dispose of the suit. The defendants contested the suit for a period of one full decade. Ultimately, they remained unsuccessful. The judgment of the City Civil Court is running in 168 pages. Many important issues are involved in this litigation. The explanation or the sufficient cause, which has been assigned in the present case, does not smack of mala fides. The overall conduct of the defendants do not warrant to castigate them as irresponsible litigants. The defendant No.1 is a 'Film Producer'. He has made a film on the life of one of the greatest saints. The State of Gujarat or rather the country has produced namely 'Shree Jalaram Bapa'. The entire film is ready. However, by the decree of the Civil Court, the defendants have been restrained from releasing the movie. In such circumstances, it could be said that the defendants would not stand to any benefit by filing the First Appeal late. On the contrary, the defendants would be anxious to get the Page 15 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER matter further adjudicated through this Court and get the rights and liabilities of the parties crystalised. To put it in other words, the delay of 155 days in filing the First Appeal cannot be said to be deliberate. It is true that on account of a serious misconception of law, the period of delay was counted initially as if the period of limitation to file First Appeal is 90 days. However, as clarified above, the judgment and decree has been passed by the City Civil Court, Ahmedabad, and therefore, the period of limitation, as prescribed under the City Civil Rules, would be 30 days. I am conscious of the fact that ignorance of law cannot be put forward as a sufficient cause for condonation of delay. However, the facts and circumstances of the case and other materials on record has persuaded me to exercise my discretion in favour of the defendants by condoning the delay of 155 days.
17 In the aforesaid context, I must also refer to an important decision of the Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123, wherein the Supreme Court has observed as under:
"8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Page 16 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.
10. The reason for such a different stance is thus : The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not putforth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the Page 17 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021 C/FA/2517/2017 IA ORDER party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss."
18 In the overall view of the matter, I have reached to the conclusion that the delay should be condoned in the larger interest of justice.
19 In the result, this application is allowed. The delay of 155 days in preferring the First Appeal is hereby condoned.
20 The First Appeal shall now be notified for admission.
(J.B. PARDIWALA, J.) CHANDRESH Page 18 of 18 Downloaded on : Tue Oct 19 21:54:50 IST 2021