Legal Heirs Of Decd Rajput ... vs Jilabhai Kanabhai Udhareja

       C/CA/349/2023                                     ORDER DATED: 24/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CIVIL APPLICATION NO. 349 of 2023

                       In F/FIRST APPEAL NO. 26649 of 2022

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      LEGAL HEIRS OF DECD RAJPUT BHAVNABA DILIPSINH RAJPUT
                       DILIPSINH NATVARSINH
                               Versus
                   JILABHAI KANABHAI UDHAREJA
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Appearance:
MR AV PRAJAPATI(672) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 24/03/2023

                                   ORAL ORDER

1. By way of this application under Section 5 of the Limitation Act, 1963, the applicant has prayed for condonation of delay of 66 days occurred in preferring the appeal.

2. Learned advocate appearing for the applicant submits that after the judgment and award passed by the Tribunal, there was Covid-19 pandemic. Due to financial crunch, the applicant could not approach the advocate in time and further was unable to bear Page 1 of 5 Downloaded on : Tue Mar 28 20:38:17 IST 2023 C/CA/349/2023 ORDER DATED: 24/03/2023 the expenses, which had led to delay of 66 days caused in filing the appeal.

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 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.

C/CA/349/2023 ORDER DATED: 24/03/2023 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.

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 Page 3 of 5 Downloaded on : Tue Mar 28 20:38:17 IST 2023 C/CA/349/2023 ORDER DATED: 24/03/2023 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 capable of removing injustice and is expected to do so."

C/CA/349/2023 ORDER DATED: 24/03/2023

4. Having heard the learned advocate for the applicant and 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 of the case, the delay of 66 days occurred in filing the appeal deserves to be condoned and is hereby condoned.

5. Accordingly, the present application is allowed.

(GITA GOPI,J) MANOJ Page 5 of 5 Downloaded on : Tue Mar 28 20:38:17 IST 2023