Oriental Insurance Company ... vs Lh Of Decd Vitthalbhai Poojabhai ...

     C/CA/1326/2019                                 ORDER DATED: 23/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 1326 of 2019
                                       In
                        F/FIRST APPEAL NO. 10338 of 2019

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                ORIENTAL INSURANCE COMPANY LIMITED
                               Versus
               LH OF DECD VITTHALBHAI POOJABHAI GOHIL
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Appearance:
MS KARUNA V RAHEVAR(3818) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR DK NAKRANI(500) for the Respondent(s) No. 4
MR.HIREN M MODI(3732) for the Respondent(s) No. 1.1,1.2,1.3,1.4
MS KAUSHAL D NAKRANI(5121) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 23/02/2023

                                  ORAL ORDER

1. Heard the learned advocates for the parties.

2. By way of this application under Section 5 of the Limitation Act, 1963, the applicant has prayed for condonation of delay of 891 days occurred in preferring the appeal.

3. Learned advocate appearing for the applicant submits that initially after receiving notice of the Tribunal, advocate was appointed and since date of accident is not covered by the policy, claim was registered under the head 'orphan' as details of the policy is awaited for the Page 1 of 4 Downloaded on : Fri Feb 24 20:56:45 IST 2023 C/CA/1326/2019 ORDER DATED: 23/02/2023 accident, which had occurred on 13.1.1994. Thereafter, on receiving notice on 3.7.2015, on appearance before the Tribunal another advocate it was found that some order was uploaded on the website of the Court and the status of MACP No.817 of 2019 was shown as 'dismissed for default'. Relying on the website information, insurance company closed the file as the petition is dismissed. It is also stated that after receiving notice dated 9.7.2018 issued by this Court in First Appeal No.5010 of 2018 filed by State Bank of India challenging the judgment, insurance company inquired and collected papers from concerned advocate appearing for SBI and it was learned the ex-parte order was passed against the insurance company. On receiving certified copy sent it to Vadodara Regional office and, thereafter, it was sent to Ahmedabad regional office with an instruction to approach the advocate for filing appeal. It is stated that due to these reasons, delay of 891 days is caused in filing the appeal.

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 Page 2 of 4 Downloaded on : Fri Feb 24 20:56:45 IST 2023 C/CA/1326/2019 ORDER DATED: 23/02/2023 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 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.

C/CA/1326/2019 ORDER DATED: 23/02/2023 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. Having heard the learned advocate for the applicant and considering the averments made in the application and considering the fact that appeal filed by State Bank of India is pending, this Court finds that the delay is sufficiently explained and in view of the facts and circumstances of the case of the case, the delay of 891 days occurred in filing the appeal deserves to be condoned and is hereby condoned.

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

7. First Appeal be listed for admission on 3 rd March 2023.

(GITA GOPI,J) R.S. MALEK Page 4 of 4 Downloaded on : Fri Feb 24 20:56:45 IST 2023