NEUTRAL CITATION
C/CA/1081/2023 ORDER DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1081 of 2023
In
F/FIRST APPEAL NO. 2849 of 2023
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HIRENBHAI GULABRAI VASANI
Versus
BIRJU G VASANI
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Appearance:
MR MOHSIN M HAKIM(5396) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/08/2023
ORAL ORDER
1. The present application has been filed for condonation of delay of 853 days caused in filing the First Appeal.
2. Mr. Mohsin M.Hakim, learned advocate for the applicant submitted that the applicant could not immediately proceed for filing the appeal after the judgment and award, and could applied for the same only on 26.10.2021, and after receiving legal advise and after making Page 1 of 5 Downloaded on : Sun Sep 17 03:05:32 IST 2023 NEUTRAL CITATION C/CA/1081/2023 ORDER DATED: 31/08/2023 undefined provisions for Court fees and other expenses, could prefer the appeal to challenge the judgment and award, and Covid-19 pandemic has also added to the delay. Mr. Hakim submitted that the applicant is willing to waive the interest for the delayed period, in case, when the prayer for enhancement of compensation would come to be allowed.
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 Page 2 of 5 Downloaded on : Sun Sep 17 03:05:32 IST 2023 NEUTRAL CITATION C/CA/1081/2023 ORDER DATED: 31/08/2023 undefined 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 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.Page 3 of 5 Downloaded on : Sun Sep 17 03:05:32 IST 2023
NEUTRAL CITATION C/CA/1081/2023 ORDER DATED: 31/08/2023 undefined
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 Page 4 of 5 Downloaded on : Sun Sep 17 03:05:32 IST 2023 NEUTRAL CITATION C/CA/1081/2023 ORDER DATED: 31/08/2023 undefined 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 853 days caused in filing the First Appeal is condoned.
5. It is kept open for both the parties to agitate regarding the interest for the delayed period at the final hearing of the appeal. The application is allowed.
(GITA GOPI,J) Pankaj Page 5 of 5 Downloaded on : Sun Sep 17 03:05:32 IST 2023