NEUTRAL CITATION
C/CA/1791/2023 ORDER DATED: 06/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1791 of
2023
In
F/SECOND APPEAL NO. 29907 of 2023
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PATEL RASHIDABEN MUNAFBHAI
Versus
KETANBHAI MAHENDRABHAI JAISWAL
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Appearance:
MR JAMSHED KAVINA(11236) for the Applicant(s) No. 1
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR JIGAR P RAVAL(2008) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/11/2023
ORAL ORDER
1. Heard Mr. Jamshed Kavina, learned advocate for the applicant and Mr. Jigar Raval, learned advocate for opponent no.1.
2. By way of this application under Section 5 of the Limitation Act, 1963, the applicant has prayed for condonation of delay of 91 days occurred in preferring the appeal.
3. Learned advocate for the applicant has submitted that the applicant is a lady who was facing a suit which came to be dismissed Page 1 of 5 Downloaded on : Mon Nov 06 20:51:52 IST 2023 NEUTRAL CITATION C/CA/1791/2023 ORDER DATED: 06/11/2023 undefined on 15.10.2019 and against that order, appeal had been filed where the learned Appellate Court set aside the judgment and decree of the Trial Court allowing the appeal had ordered for registration of the sale deed ordering the present applicant to accept the amount of Rs.1,45,000/- from the plaintiff. Mr. Kavina submitted that the applicant being a lady was not in a position to deal with the expenses and for procuring the certified copies and for necessary documents, delay had occurred and in the meantime, had prayed for adjournment in the execution petition. Mr. Kavina submitted that the delay has occurred in making arrangement for the court fees and other expenses.
4. Mr. Jigar Raval, learned advocate for opponent no.1 has submitted that the delay is not bonafide and the applicant was represented by a lawyer in the Appellate Court and therefore, the applicant cannot now show ignorance of the judgment of the Appellate Court and further submitted that in execution proceedings, the applicant had consistently taken adjournments and the prayer was made before the first Appellate Page 2 of 5 Downloaded on : Mon Nov 06 20:51:52 IST 2023 NEUTRAL CITATION C/CA/1791/2023 ORDER DATED: 06/11/2023 undefined Court seeking execution of the judgment and decree to prefer the Second Appeal.
5. 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 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.Page 3 of 5 Downloaded on : Mon Nov 06 20:51:52 IST 2023
NEUTRAL CITATION C/CA/1791/2023 ORDER DATED: 06/11/2023 undefined
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. 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 Page 4 of 5 Downloaded on : Mon Nov 06 20:51:52 IST 2023 NEUTRAL CITATION C/CA/1791/2023 ORDER DATED: 06/11/2023 undefined injustice and is expected to do so."
6. Considering the fact that the applicant has not been assisted timely for procuring the documents, the delay of 91 days occurred in preferring the appeal would certainly affect the other side, but the opponents would have the liberty to defend. However, the applicant shall pay the cost of Rs.2,500/- to the opponent no.1.
7. Having heard the learned advocates appearing for the respective parties 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, the delay of 91 days occurred in filing the appeal deserves to be condoned and is hereby condoned.
8. Accordingly, the present application is allowed. Registry is directed to list the main matter for hearing on 8.11.2023.
(GITA GOPI,J) Maulik Page 5 of 5 Downloaded on : Mon Nov 06 20:51:52 IST 2023