Gujarat State Road Transport ... vs Nimeshchadra Mahendrakumar ...

     C/CA/2912/2019                                 ORDER DATED: 15/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 2912 of 2019
                                       In
                        F/FIRST APPEAL NO. 20959 of 2019

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           GUJARAT STATE ROAD TRANSPORT CORPROTION
                            Versus
            NIMESHCHADRA MAHENDRAKUMAR CHAUHAN
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Appearance:
MR VIVEK SHAH for MR HAMESH C NAIDU(5335) for the Applicant(s) No. 1
MR PALAK H THAKKAR(3455) for the Respondent(s) No. 6
RULE SERVED for the Respondent(s) No. 1,2
RULE UNSERVED for the Respondent(s) No. 5
UNSERVED EXPIRED (R) for the Respondent(s) No. 3,4
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 15/02/2023

                                  ORAL ORDER

1. Heard the learned advocate for the applicant.

2. By way of this application under Section 5 of the Limitation Act, 1963, the applicant has prayed for condonation of delay of 2167 days occurred in preferring the appeal.

3. Learned advocate, Mr.Vivek Shah, appearing for the applicant submits that delay has occurred in preferring the appeal since there were 40 Motor Accident Claim Petitions arising out of one accident. He submitted that 34 MACPs were disposed of by order dated 26.10.2007, wherein 100% negligence has been attributed to the truck driver Page 1 of 4 Downloaded on : Thu Feb 16 21:51:11 IST 2023 C/CA/2912/2019 ORDER DATED: 15/02/2023 and in the present impugned judgment 50% negligence is attributed to bus driver, which would be hit by principle of res judicata, as the Tribunal was required to follow earlier judgment, which is arising from the same facts and accident. Mr.Shah states that 30 MACPs judgment passed by the Tribunal was challenged before this Court and on 25.2.2021, Division Bench of this Court has re-affirmed the judgment of the Tribunal. He also states that the applicant has right to challenge the impugned judgment.

4. Countering the arguments, Mr.Palak Thakkar submits that whether principle of res judicata would be applicable in the present case is a question of fact and the GSRTC would not have leverage to submit so when the earlier decision of the Tribunal has not been brought to the notice of the Tribunal, who passed the impugned order.

5. 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 Page 2 of 4 Downloaded on : Thu Feb 16 21:51:11 IST 2023 C/CA/2912/2019 ORDER DATED: 15/02/2023 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. 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.

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.

C/CA/2912/2019 ORDER DATED: 15/02/2023

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."

6. Heard the learned advocates for the parties and considered the averments made in the application as well as the fact that order dated 26.10.2007 was challenged by the Insurance Company by filing 30 First Appeals and the Division Bench has passed an order on 25.2.2021, whereby the order of the Tribunal came to be re-affirmed and the appeals of the Insurance Company were dismissed. Further, the appeal would be preferred by GSRTC only after completion of administrative formalities. Considering order dated 25.2.2021 passed in 30 First Appeals arising out of same accident by Division Bench of this Court, delay of 2167 days occurred in filing the appeal deserves to be condoned and is hereby condoned.

7. Accordingly, the present application is allowed. Rule is made absolute.

(GITA GOPI,J) R.S. MALEK Page 4 of 4 Downloaded on : Thu Feb 16 21:51:11 IST 2023