Paresh Dineshchandra Somaiya vs Manish Dineshchandra Somaiya
2021 Latest Caselaw 5060 Guj

         C/CA/3277/2019                                  ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CIVIL APPLICATION NO. 3277 of 2019

         In F/APPEAL FROM ORDER NO. 31402 of 2019

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                   PARESH DINESHCHANDRA SOMAIYA
                               Versus
                   MANISH DINESHCHANDRA SOMAIYA
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Appearance:
MR Y J PATEL(3985) for the Applicant(s) No. 1
KUNAL M DAVE(10125) 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 Civil Application is filed by the applicant under Section 5 of the Limitation Act for condonation of delay of 75 days.

2. Facts of the case in nutshell are that the impugned order dated 30.03.2019 passed by the learned Principal Senior Civil Judge, Mundra- Kachchh below application Exh. 5 in Special Civil Suit No. 151 of 2018. That after on 01.04.2019, the present applicant had applied for certified copy of the impugned order before the learned Civil Court, Mundra at Kachchh and on 16.04.2019 same was ready and delivered to the concerned lawyer of the applicant, therefore, there is some delay in challenging the impugned order before this Hon'ble Court and in preferring the accompanying appeal from order. That the said delay is not attributable to any negligence on the part of the present applicant. That the present applicant is not well conversant with the laws and he was not aware of the limitation period to file the Appeal from order. Thereafter, the present

C/CA/3277/2019 ORDER

applicant took proper legal advice as to the course open to him to challenge the impugned order. That further the applicant has remained vigilant and on getting proper legal advice, the present applicant has taken the steps to prefer the said appeal from order, therefore, there is some delay in preferring the said appeal from order, which may kindly be condoned in the interest of substantial justice.

3. Heard learned advocate Mr. Y. J. Patel for the applicant and learned advocate Mr. Kunal Dave for the respondent at length.

4. Learned advocate Mr. Y. J. Patel for the applicant has submitted that the present applicant is not well aware about the laws as well as limitation period to file the appeal from order. He further submitted that the present applicant had not availed proper legal advise to challenge the award which is impugned in the appeal from order, therefore the delay may be condoned.

5. Having heard the arguments advanced by the learned advocate for the applicant, there is no doubt that every case is required to be decided on merits rather than on mere technicalities. Further, the delay of 75 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 75 days is condoned in that 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.

C/CA/3277/2019 ORDER

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 delay of 75 days is hereby condoned. This application deserves to be allowed and accordingly stands allowed. Rule is made absolute to the aforesaid extent.

(A. C. JOSHI,J) prk