Gujarat High Court
Shankarbhai Nanjibhai Damor vs Gauravbhai Navinchandra Navadiya on 8 June, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/CA/901/2022 ORDER DATED: 08/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 901 of 2022
In F/FIRST APPEAL NO. 3925 of 2022
==========================================================
SHANKARBHAI NANJIBHAI DAMOR
Versus
GAURAVBHAI NAVINCHANDRA NAVADIYA
==========================================================
Appearance:
AMRITA A PATEL(7534) for the Applicant(s) No. 1,2
for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/06/2022
ORAL ORDER
1. This is an application under Section 5 of the Limitation Act for condonation of delay of 437 days which has occurred in preferring the captioned First Appeal.
2. Learned advocate for the applicant submitted that the impugned order was pronounced on 04.10.2018. The claimants were thereafter informed by the advocate of the tribunal that the impugned award has been passed and the copy of the award was accordingly tendered to the claimants. The applicants are coming from poor background and are not well aware about the legal course of action. The applicants herein were not informed that the impugned award can be challenged before the High Court and whether the enhanced amount can be awarded to the applicants as per various judgments of the Hon'ble Supreme Court. Later on, applicants made inquiry and sought legal opinion in order to know the legal course of action. The applicants also belong to poor class Page 1 of 5 Downloaded on : Wed Jun 08 21:01:38 IST 2022 C/CA/901/2022 ORDER DATED: 08/06/2022 of society and are therefore facing financial constraints which further stopped the applicants from taking any action immediately. The applicants thereafter contacted another advocate and sought for his legal advice for further line of action and the applicants were informed that the said award and judgment is required to be challenged in the High Court of Gujarat seeking enhancement. The applicants having financial constraint remained hesitant, and in the meantime Covid - 19 Pandemic and the resultant lockdown further stalled the process of pursuing the matter, and therefore, the applicants could not approach the advocate in High Court of Gujarat. The applicants thereafter approached the advocate with some of the papers. The applicant"s phone number changed in the meanwhile and the advocate was unable to reach the applicants. Upon the applicants getting in touch again the applicants were advised to obtain the missing documents. The applicants thereafter obtained all the relevant papers and supplied the same in the month of December, 2021, for filing of appeal. The advocate thereafter took some time to prepare the draft of First Appeal and the application of condonation of delay.
2.1 Learned advocate for the applicants submitted that in the meantime the period of limitation of filing the appeal expired. The delay has occurred despite the fact that there was no intention to abandon the proceedings, the unexpected halt to life brought by the pandemic and despite due diligence that could be exercised by the applicants given their circumstances and for the reasons as set out hereinabove. This application is therefore filed seeking for condonation of delay of 437 days caused in presenting the appeal which is requested to be Page 2 of 5 Downloaded on : Wed Jun 08 21:01:38 IST 2022 C/CA/901/2022 ORDER DATED: 08/06/2022 condoned in the interest of justice.
3. Considering the submissions made and in view of the averments made in para 4 and 5 of the application and also considering the fact that the delay has been sufficiently explained; this Court is of the opinion that the delay caused in preferring the First Appeal deserves to be condoned.
4. 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 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.Page 3 of 5 Downloaded on : Wed Jun 08 21:01:38 IST 2022
C/CA/901/2022 ORDER DATED: 08/06/2022
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 litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non-grata status.
Page 4 of 5 Downloaded on : Wed Jun 08 21:01:38 IST 2022C/CA/901/2022 ORDER DATED: 08/06/2022 The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient 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 merits in preference to the approach which scuttles a decision on merits."
5. Thus, taking into consideration the principle as laid down in the above referred judgment and when the delay of 437 days is sufficiently explained, the same is condoned. The application is allowed in the aforesaid terms. Rule is made absolute with no order as to costs. Let the main matter be listed on 23rd June, 2022.
(GITA GOPI,J) A.M.A. SAIYED Page 5 of 5 Downloaded on : Wed Jun 08 21:01:38 IST 2022