Arvindbhai Savdashbhai Patel vs Jayantibhai Khimabhai Rathva on 29 July, 2022

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Gujarat High Court

Arvindbhai Savdashbhai Patel vs Jayantibhai Khimabhai Rathva on 29 July, 2022

Bench: Gita Gopi

     C/CA/1464/2020                                 ORDER DATED: 29/07/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 1464 of 2020

                                        In

                        F/FIRST APPEAL NO. 22204 of 2019

==========================================================
                        ARVINDBHAI SAVDASHBHAI PATEL
                                    Versus
                        JAYANTIBHAI KHIMABHAI RATHVA
==========================================================
Appearance:
MR R.K.MANSURI(3205) for the Applicant(s) No. 1
for the Respondent(s) No. 4
ADVOCATE NOTICE SERVED for the Respondent(s) No. 1,2
MR DAKSHESH MEHTA(2430) for the Respondent(s) No. 5
MR. RUSHANG D MEHTA(6989) for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 3
UNSERVED EXPIRED (R) for the Respondent(s) No. 4.1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 29/07/2022

                                 ORAL ORDER

1. Rule appears to be unserved on the respondent no.4.1, as expired. The prayer is made for condoning the delay of 284 days in filing the First Appeal, which is primarily on the ground that the applicant is residing at very remote area and was not aware about the judgment and award, so passed; he could not make arrangement for funds and after the amount was deposited by the Insurance Company, he could prefer the First Appeal.

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C/CA/1464/2020 ORDER DATED: 29/07/2022

2. In the case of State of Gujarat vs. Koli Mohan Nanubhai and Others, reported in 1997 (1) GCD 890, the 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

3. 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 meaning- ful manner which subserves 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 Page 2 of 4 Downloaded on : Sat Dec 24 22:19:07 IST 2022 C/CA/1464/2020 ORDER DATED: 29/07/2022 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 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 Page 3 of 4 Downloaded on : Sat Dec 24 22:19:07 IST 2022 C/CA/1464/2020 ORDER DATED: 29/07/2022 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."

4. 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, the delay of 284 days caused in filing the First Appeal is condoned. The application is allowed. Rule is made absolute.

(GITA GOPI, J.) Pankaj Page 4 of 4 Downloaded on : Sat Dec 24 22:19:07 IST 2022

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