Gujarat High Court
Iqbal Ismail Badana vs Arif Sattar Kharkhar on 6 September, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/CA/1831/2022 ORDER DATED: 06/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1831 of 2022
In
F/FIRST APPEAL NO. 10088 of 2020
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IQBAL ISMAIL BADANA
Versus
ARIF SATTAR KHARKHAR
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Appearance:
MR. SABIR B SAIYYAD(6322) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/09/2022
ORAL ORDER
1. The present application has been filed for condonation of delay of 466 days caused in filing the First Appeal.
2. Learned advocate for the applicant states that the delay has occurred, on account of process of contacting the Advocate for seeking the legal advise to prefer an appeal and it was only after making a prayer for disbursement of the money before the Tribunal concerned, the applicant could prefer appeal after contacting the Advocate; thus that has laid to delay of 466 days.
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3. 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.
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 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 justifiably liberal approach in matters instituted in this Court. But the message does Page 2 of 4 Downloaded on : Tue Sep 06 21:09:15 IST 2022 C/CA/1831/2022 ORDER DATED: 06/09/2022 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.
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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. 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 466 days caused in filing the First Appeal is condoned with a condition that the applicant shall not be entitled to interest for the delayed period. The application is allowed.
(GITA GOPI,J) Pankaj Page 4 of 4 Downloaded on : Tue Sep 06 21:09:15 IST 2022