C/SCA/17241/2022 ORDER DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17241 of 2022
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NAYNABEN BHAYLALBHAI PATEL
Versus
MANHARBHAI RAMANBHAI PATEL
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Appearance:
MR. HARDEEP L MAHIDA(7112) for the Petitioner(s) No. 1,2,3
HARSHIT R PUROHIT(8385) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/03/2023
ORAL ORDER
1. The present petition is filed challenging the order dated 30.6.2022 passed by the learned Principal District Judge, Narmada at Rajpipla in Civil Miscellaneous Application No.9 of 2021 below Exh.7, by which the delay of 377 days caused in preferring the appeal was not condoned.
2. Heard learned advocate Mr.Mahida for the petitioners and learned advocate Mr.Purohit for the respondent.
3. Learned advocate Mr.Mahida submitted that the petitioner herein is the original defendant in Regular Page 1 of 5 Downloaded on : Tue Mar 28 20:47:25 IST 2023 C/SCA/17241/2022 ORDER DATED: 27/03/2023 Civil Suit No.141 of 2017, whereby the learned trial Court has passed the judgment and decree on 16.1.2020 and being aggrieved by the same, the defendant filed appeal on 25.2.2021 with an application for condonation of delay of 377 days. He submits that the delay is caused due to the outbreak of pandemic of covid-19 within a period of two months from the date of judgment i.e. 16.1.2020 and the closure of courts for certain period. He has drawn the attention of this Court to the recent judgment of Hon'ble Apex Court and submitted that the Hon'ble Apex Court has taken suo motu cognizance of the same and vide order dated 10.1.2022 passed in Miscellaneous Application No.21 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Motu Writ Petition (C) No.3 of 2020, has directed to exclude the period from 15.3.2020 to 28.2.2022 for the purpose of limitation. He, therefore, submitted that the order of the learned lower appellate Court, wrongly relying on the old judgments, is apparently erroneous. He further submitted that the lower appellate Court has taken a hypertechnical approach while considering the application for condonation of delay, more particularly, in the peculiar circumstances of pandemic. He, therefore, Page 2 of 5 Downloaded on : Tue Mar 28 20:47:25 IST 2023 C/SCA/17241/2022 ORDER DATED: 27/03/2023 prayed to allow this petition.
4. Per contra, learned advocate Mr.Purohit for the respondent submitted that the impugned judgment and decree is passed on 16.1.2020 and 30 days appeal period will be over in February, 2020, however, the present petitioner has filed the appeal with delay condonation application in February, 2021 and there is no cause, much less sufficient cause, shown for the delay. He has further submitted the Court has given cogent and convincing reasons in paragraphs 5 and 6 of the impugned order by dealing with the aspect that the lockdown started from March, 2020 and thereafter in July, 2020, the Courts started to work virtually and therefore the Court has believed that the reason stated by the petitioner for the delay is not valid reason. He therefore submitted that since the petitioner is not vigilant in pursuing his remedy, the order of the learned lower appellate court is just and proper and therefore this petition be dismissed.
5. Considered the rival submissions and heard the learned advocates for the parties. Though the judgment Page 3 of 5 Downloaded on : Tue Mar 28 20:47:25 IST 2023 C/SCA/17241/2022 ORDER DATED: 27/03/2023 and order is passed by the trial Court on 16.1.2020 and the appeal is required to be filed within 30 days thereafter, it happens that many times the petitioners may have many constraints like money, not proper advice by advocate etc. and could not adhere to the period of limitation. The Apex Court in the case of Collector, Land Acquisition, Anantnag and another V/s 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 unless there is gross negligence or unexplained delay which may cause prejudice to the rights of the other parties.
6. Even considering the latest judgment of the Apex Court in the case of suo motu proceedings mentioned above, the period from 15.3.2020 to 28.2.2022 is to be excluded for the purpose of delay and therefore also the learned lower appellate Court has committed error in dismissing the delay condonation application. Page 4 of 5 Downloaded on : Tue Mar 28 20:47:25 IST 2023
C/SCA/17241/2022 ORDER DATED: 27/03/2023
7. In view of the above discussion, this petition is allowed. The impugned order dated 30.6.2022 passed by the learned Principal District Judge, Narmada at Rajpipla in Civil Miscellaneous Application No.9 of 2021 below Exh.7 is quashed and set aside. The delay caused in filing the appeal against the order dated 16.1.2020 passed in Regular Civil Suit No.141 of 2017 is condoned on condition that the petitioner herein shall pay the cost of Rs.2,500/- to the respondent herein within a period of 10(ten) days from the date of receipt of this order. The learned lower appellate Court shall register the appeal and it is expected that the same shall be proceeded as expeditiously as possible.
(SANDEEP N. BHATT,J) SRILATHA Page 5 of 5 Downloaded on : Tue Mar 28 20:47:25 IST 2023