Gujarat High Court
Jagdipkumar Rameshbhai Parmar vs Rameshbhai Ganeshbhai Vankar on 5 April, 2021
Bench: Ashokkumar C. Joshi
C/SCA/1200/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1200 of 2020
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JAGDIPKUMAR RAMESHBHAI PARMAR
Versus
RAMESHBHAI GANESHBHAI VANKAR
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Appearance:
MR. DEVENDRA G RANA(6997) for the Petitioner(s) No. 1,2
MR SHANIKUMAR L TAILI(11143) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 05/04/2021
ORAL ORDER
1. This petition is filed by the petitioners under Articles 226
and 227 of the Constitution of India to quash and set aside the
order dated 23.09.2019 passed by the 8th Additional District
Judge, Vaodara below Exh. 9 in Civil Misc. Application No 97 of
2019 and to condone the delay of 9 days.
2. Facts of the case in nutshell are that the petitioners/
plaintiffs have preferred a Regular Civil Suit No. 580 of 2014
against the respondents / defendants before the learned Civil
Court, Vadodara. That after leading the evidence of both the
parties, the learned trial Court have dismissed the plaintiff's suit
with the cost on merits vide order dated 29.10.2019. That
plaintiffs applied for certified copy of the said judgment on
02.11.2018 and the plaintiffs have received the certified copy of
the judgment and decree on 06.02.2019 and thereafter, within a
one month the appeal is to be filed against the said impugned
order of the learned trial Court but due to bona-fide mistake and
lack of knowledge the present plaintiffs were unable to file appeal
C/SCA/1200/2020 ORDER
within limitation period and therefore the applicants have
preferred appeal along with the application for condonation of
delay of 9 days in preferring the appeal before the learned
District Court against the order dated 29.10.2018. That if the
application of the applicant is allowed then the respondent will
get chance to appear in the matter and the main appeal can be
decided on merits.
3. Learned advocate Mr. Devendra G. Rana for the petitioners
has submitted that despite sufficient time and opportunity given
to the respondent but none appeared for the respondent and the
same factum is observed by this Court on 26.03.2021 and the
matter is taken up for final hearing.
4. Learned advocate Mr. Devendra G. Rana for the petitioners
has submitted that the order passed by the learned District Court
is against the settled law. He further submitted that the learned
District Court has not considered the aspect of balance of
convenience and irreparable loss and committed error in not
condoning the delay of 9 days. He also submitted that the trial
Court should not dismiss the delay application merely on hyper
technical view but every case has to be considered on its own
merits.
5. Having heard the arguments advanced by the learned
advocate for the petitioners, there is no doubt that every case is
required to be decided on merits rather than on mere
technicalities. Further, the delay of 9 days is very small delay and
simultaneously, as per the catena of judicial pronouncements by
the Hon'ble Supreme Court, every matter is required to be
decided on merits and such technicality may not come in the
way. In the present case if delay of 9 days is condoned in that
C/SCA/1200/2020 ORDER
case ends of justice would meet. The prime purpose of which
Section 5 of the Limitation Act, 1963 was enacted so as to enable
the Court to do substantial justice and that is the prime reason
why very elastic expression and sufficient cause is employed
therein so as to sub-serve the ends of justice.
6. This Court has taken into consideration the judgment
passed by the co-ordinate Bench in the case of Mafatlal
Apparels Vs. Akbarbhai Ganibhai Saiyed & Ors, reported in
2017 Law Suit (Guj) 1947 wherein it is observed as under:
"As far as the decisions relied upon by Mr. Dave the
same are not applicable to the facts of the present case
since in the reference, the case of the employees was
being represented by Union leader and he informed the
employees to remain present only when called for. They
were never aware about dismissal of the reference and
where never informed that the reference was dismissed
for want of prosecution. The Co-ordinate Bench of this
Court in case of Rajesh Pukhraj Chauhan vs. Sinter Plast
Containers and another has held that it is trite that a
litigant is permitted to litigate for his rights by having a
decision from the Court of law on merits, rather than he is
ousted on technical ground. A liberal approach is not out
of place"
7. As a result, the order dated 23.09.2019 passed by the 8th
Additional District Judge, Vaodara below Exh. 9 in Civil Misc.
Application No 97 of 2019 is hereby quashed and set aside and
the delay of 9 days is condoned. This petition deserves to be
allowed and accordingly stands allowed. Rule is made absolute to
the aforesaid extent.
(A. C. JOSHI,J)
prk
