C/CA/974/2022 ORDER DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 974 of 2022
In F/FIRST APPEAL NO. 16260 of 2022
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STATE OF GUJARAT
Versus
LABHUVANTIBEN NARSHIBHAI DHANKECHA
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Appearance:
MR. AKASH CHHAYA, AGP for the Applicant(s) No. 1
VATSAL M PARIKH(9340) for the Respondent(s) No. 1
VISMAY V MALKAN(9284) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 23/02/2023
ORAL ORDER
1. Present Civil Application is filed seeking condonation of delay of 102 days in preferring the First Appeal against the judgment and award passed by the 5th Additional Senior Civil Judge, Rajkot in Land Reference Case No.434/1998 dated 04-12-2019.
2. Learned AGP has submitted that the delay has occurred primarily on account of Pandemic situation as the factum of the award came to the knowledge after execution application was filed by the respondent on 07- 08-2020 and initiation with regard to the such pending execution application was given to the present appellant through acquiring Authority only on 01-07-2021. Thereafter, on account of the administrative procedure required to be undertaken before preferring Page 1 of 3 Downloaded on : Fri Feb 24 20:50:42 IST 2023 C/CA/974/2022 ORDER DATED: 23/02/2023 Appeal like seeking prior sanction from the concerned Department at the State level, the delay had occurred.
3. Learned Advocate for the respondent has strongly objected to the grant of delay condone application on the ground that the applicant has not approached this Court with clean hands, when they claim that they were not aware of the passing of the award. Learned Advocate relies upon the documents placed in support of his Affidavit, which is Pursis of the Officer of the R&B Department, where it is in the Executing Court, where it is stated that the proposal for securing grant for payment of compensation, has already been moved with the State Government and is pending at that stage and therefore, averments made with regard to lack of knowledge is not correct reflection of fact and the applicant has not come with clean hands.
4. The Court has taken into consideration Affidavit in reply filed and particular documents annexed along with Affidavit being Pursis filed in the Regular Civil Execution Application No.1 of 2020 and observes that such Pursis has been filed on 01-04-2022 by the Executive Engineer, R&B Division at Rajkot. As the Appeal is to be preferred through the Deputy Secretary, R&B Division, 'D' Branch, Sachivalaya, Gandhinagar, the Court presumes that the delay would have occurred, while undertaking process for seeking sanction from higher Office in preferring the Appeal.
5. In any case, the Court is not inclined to accept the contention of the respondent that the deposing Officer has not come before this Court with clean hands only because of mention of particular date and filing of Pursis in the Execution proceedings.
6. In view of the aforesaid, considering the Delay of 102 days not being Page 2 of 3 Downloaded on : Fri Feb 24 20:50:42 IST 2023 C/CA/974/2022 ORDER DATED: 23/02/2023 inordinate, present Civil Application is allowed. Delay of 102 days in preferring the First Appeal is hereby condoned. It is clarified that by this order only delay condone application has been allowed and therefore, till the First Appeal as well as Civil Application for Stay is considered, it may not come in way of pending execution proceedings.
7. First Appeal and Civil Application No.1 of 2022 for Stay to be listed on 28-02-2023.
(A.Y. KOGJE, J) PARESH SOMPURA Page 3 of 3 Downloaded on : Fri Feb 24 20:50:42 IST 2023