C/SCA/10/2021 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10 of 2021
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JAYANT MADHAVJI GESOTA
Versus
M/S PARADISE INDUSTRIAL CORPORATION
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2
DS AFF.NOT FILED (N) for the Respondent(s) No. 4,5,6,9
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 1,1.1
NOTICE SERVED BY DS for the Respondent(s) No. 3,7,8
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/03/2023
ORAL ORDER
1. The present petition is filed by the petitioner being aggrieved and dissatisfied with the judgment and th order dated 20.3.2020 passed by the 4 Additional Sessions Judge, Rajkot in CMA No.216 of 2019 filed by the respondent no.1 herein seeking condonation of delay of 146 days in preferring First Appeal against the judgment and order dated 30.7.2019 passed by the learned Principal Senior Civil Judge, Rajkot in SCS No.153 of 1991.
2. Heard learned advocate Mr.Jasani for the Page 1 of 6 Downloaded on : Mon Mar 27 20:38:50 IST 2023 C/SCA/10/2021 ORDER DATED: 24/03/2023 petitioner and learned advocate Mr.Sheth for respondent no.1 and 1.1.
3. Learned advocate Mr.Jasani for the petitioner has submitted that the learned lower appellate Court has grossly erred in not properly appreciating the provisions of the Limitation Act and the averments made in the application for condonation of delay filed by the present respondent under Section 5 of the limitation Act. He has further submitted that no sufficient cause is made out as reasons assigned for cause of delay is not in accordance with the provisions of law. He has further submitted that the learned trial Court has not dealt with the detailed objections filed against the application filed under Section 5 of the delay condonation. He has further submitted that even in the proceedings before the civil court, the present respondent did not act in vigilant manner and remained negligent during the proceedings. He has further submitted that the application for condonation of delay filed by the present respondent no.1 do not generate any confidence in the minds of a prudent man and the averments made in the application are false averments. He has further submitted that such Page 2 of 6 Downloaded on : Mon Mar 27 20:38:50 IST 2023 C/SCA/10/2021 ORDER DATED: 24/03/2023 application is nothing but an attempt by the respondent to unnecessary drag the litigation by filing such proceedings at belated stage. He has further submitted that one of the partners who is looking after the business registered partnership firm is not well and on that ground, the application for condonation of delay was filed but he has submitted that the partnership firm consisted of many partners and any of the partner should have proceeded further but it was not done and therefore it cannot be said that the respondent remained vigilant even then the learned trial court has not considered all these aspects and passed the impugned order which is erroneous and therefore requires interference by exercising powers under in this petition.
4. Per contra, learned advocate Mr.Sheth appearing for the respondent has submitted that the learned trial Court has not committed any error and on the contrary, the judgment delivered by the learned trial Court has considered all the relevant aspects for consideration of condonation of delay under Section 5 of the Limitation Act. He has also submitted that the averments made in the application by the respondent Page 3 of 6 Downloaded on : Mon Mar 27 20:38:50 IST 2023 C/SCA/10/2021 ORDER DATED: 24/03/2023 no.1 for condonation of delay has put forward the factual position and any prudent man can presume that the person who is in charge of the affairs normally looking after is not well and normally who is looking after the matters regarding the court proceedings pursues the matter and other partners may not have any knowledge about the said aspect and therefore the learned trial Court has rightly considered all these aspects in its judgment and order and has given cogent and convincing reasons by holding that there is sufficient cause made out for condonation of delay and therefore no interference is required in the present petition.
5. I have considered the rival submissions and also considered the material placed on record and also perused the impugned order. From the same, it is evident that the respondent no.1 has filed the application for condonation of delay on the ground that the partner is not well and was remaining sick for long period and medical papers in support of the same is produced at mark 3/3. It also transpires that the learned trial Court has also considered the relevant aspects while considering the application under Section 5 of the Limitation Act, Page 4 of 6 Downloaded on : Mon Mar 27 20:38:50 IST 2023 C/SCA/10/2021 ORDER DATED: 24/03/2023 more particularly the fact that there is sufficient cause made out and the parties do not have any reason to adopt any dilatory techniques but it seems a genuine cause for the delay. The learned trial Court has also considered that any meritorious proceedings should not be thrown out on technical grounds and learned trial Court has relied on the judgment in the case of Ummer V/s Pottengal Subida reported in 2018(0) AIJEH HC 61891 of the Apex Court, where it is held that the Court has to take liberal view in matter for condonation of delay and held that the appellant has shown sufficient cause within the meaning of Section 5 of the Limitation Act. The learned trial Court has also considered the judgment in the case of Virendra Gulabchand Patva V/s Ashaben Vinodbhai Desai reported in 2018(0) AIJEL HC 239285, the Apex Court has held that when the substantial justice and technical consideration such as delay are pitted against each other, substantial justice should reign.
6. In view of the above and even otherwise also, in view of the settled principle laid down in the case of Collector, Land Acquisition, Anantnag and another V/s Page 5 of 6 Downloaded on : Mon Mar 27 20:38:50 IST 2023 C/SCA/10/2021 ORDER DATED: 24/03/2023 Mst.Katiji and Others reported in AIR 1987 SC 1353 has held that the Court should not take pedantic approach in the matter and not take high technical approach on the condonation of delay and the parties should be given reasonable opportunity to proceed with the matter on merits and therefore I am of the opinion that there is no error committed by the learned trial Court in condoning the delay and there is no reason to interfere with the same.
7. In view of the above, this petition requires to be dismissed and accordingly dismissed. Notice is discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J) SRILATHA Page 6 of 6 Downloaded on : Mon Mar 27 20:38:50 IST 2023