Nainesh Girishkumar Panchal vs Chirag Girishkumar Panchal
2021 Latest Caselaw 3914 Guj

           C/CA/134/2021                                       ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CIVIL APPLICATION NO. 134 of 2021

               In F/APPEAL FROM ORDER NO. 26865 of 2020

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                      NAINESH GIRISHKUMAR PANCHAL
                                  Versus
                      CHIRAG GIRISHKUMAR PANCHAL
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Appearance:
MR PUNAM G GADHVI(3724) for the Applicant(s) No. 1
DHRUVIK K PATEL(7769) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 08/03/2021

                               ORAL ORDER

1. Draft Amendment, so far as "incorrect number days of delay i.e. 542" as mentioned in Civil Application [For Condonation of Delay] is allowed. Applicant to carry out necessary amenment forthwith.

2. Heard learned Advocate Mr. Punam G. Gadhvi for the Applicant / Appellant and learned Advocate Mr. Dhruvik K. Patel for the Opponent / Respondent through video conference.

3. The Applicant / Appellant [Original Defendant No.1] has filed this Application under Section 5 of the Limitation Act for the prayer to condone the delay of 285 days in preferring the Appeal from Order against the order dated 6.5.2019 Application Exh. 6 and 7 (Notice of Motion) by the learned Judge, City Civil and Sessions Court, Ahmedabad in Civil Suit No. 1326 of 2018 on the ground that after the order was passed by the learned City Civil and Sessions Court on 6.5.2019, the Applicant had tried to enter into a compromise deed but the effort was in vague and on such premises the Applicant could not

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make the Application in time and has thus preferred this Delay Condonation Application. It is submitted that due to global outbreak of COVID-19 pandemic, lockdown was imposed throughout the country since 22nd March 2020 under such circumstances, the Applicant could not prefer Appeal within the limitation period.

4. Learned Advocate for the Applicant has placed heavy reliance on the judgment dated 15.11.2013 by the Hon'ble Supreme Court, rendered in Civil Appeal No. 10581 of 2013 [arising out of Special Leave Petition (Civil) No. 23918 of 2012] and has placed reliance on the observations made therein by the Hon'ble Apex Court as under:

(a) Ordinary a litigant does not stand to benefit by lodging an appeal late.

(b) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshhold and cause of justice being defeated.

(c) As against this when delay is condoned the highest that can happen is at cause would on merits after hearing the parties.

(d) 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.

(e) 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 justice being done because of a non- deliberate delay.

(f) There is no presumption that delay is condoned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

              C/CA/134/2021                                         ORDER




       (g)      It must be grasped that judiciary is respected not on account of its
       power to l       egalize injustice on technical grounds but because it is
       capable of removing           injustice and is expected to do so.

5. Learned Advocat for the Applicant / Appellant [Original Defendant No.1] has further submitted that the financial condition of the Applicant is not so sound and in this Pandemic of COVID-19 it has become more worsned, and therefore it is prayed that if the delay is not condoned, it would amount to throwing out a meritorious case at admission stage which will cause injustice to the Applicant. It is further submitted that the Court is required to see the verdict on substantial justice rather than on technicalities when there is a delay of only 285 days in preferring the Appeal from Order. On such premises, it is prayed to allow the delay condonation application.

6. Per contra, learned Advocate for the Respondent has heavily opposed the petition and submitted that in the present case the Applicant has not come within 30 days and delay is required to be explained on the basis of day-to-day explanation. He has further submitted that the lockdown was from March 2020, but before that date i.e. in May 2019, the Trial Court has passed the order. Therefore, sufficient time was there with the Applicant / Appellant to prefer Appeal in time. Further it is submitted that as such there is no proper explanation. He, therefore, submitted that the delay may not be condoned and the Application deserves to be dismissed on the ground of not giving proper explanation for delay by the Applicant. He, however, submitted that if the Hon'ble Court is clined to condone the delay, in that case, heavy cost may be imposed on the Applicant / Appellant.

7. Having heard the the arguments advanced by learned Advocate for the Applicant / Appellant, there is no doubt that every case is required to be decided on merits rather than on technicality. Further, as submitted by the Applicant that due to COVID - 19 pandemic, he could not take necessary steps

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to file the Appeal in time, and therefore, delay of 285 days has occured. Moreover, due to Lockdown the financial condition of the Applicant has become more worsen, and therfore also, he could not file the Appeal in time. Therefore, if there is some delay due to some sufficient cause, in that case, the Application is required to be allowed, especially when, the Hon'ble Supreme Court on 23.3.2020 had taken suo moto cognizance of the situation having arisen due to COVID-19 pandemic and to obviate the difficulties being faced by lawyers / litigants who could not come physically to file prodceedings, the Apex Court exercised its extraordinary powers under Article 142 read with Article 141 of the Constitution of India and thereby, had extended the period of limitation w.e.f. March 15, 2020, for filing petitions / applications / suits / appeals / all other proceedints within the priod of limitation prescribed under the general law of limitation or under Special Laws (both Central and / or State). Not only that delay has occurred due to sufficient cause and hence application is required to be allowed. The prime purpose for 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. Learned Advocate for the Opponent had opposed for '9' months (prior to lockdown), but such period is not so long which denies the prayer of the Applicant for condonation of delay.

8. This Court has considered the judgment passed by the co-ordinate bench reported in 2017 Law Suit (Guj) 1947 in the case of Mafatlal Apparels v. Akbarbhai Ganibhai Saiyed & Ors. 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 Coordinate Bench of this Court in case of Rajesh Pukhraj Chauhan v. Sinter Plast Containers and another has held that it is trite that a

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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."

9. Further, this court has also considered the judgment reported in 1987 Law Suit (SC) 214 in case of Collector, Land Acquisition, Anantnag v. Mst Katiji, wherein it is observed as under:

"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 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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a liti- gant, are accorded the same treatment and the law is admin- istered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experi- ence shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the in-herited

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bureaucratic methodology imbued with the note-mak- ing, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more diffi- cult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "suffi- cient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. Appeal is allowed accordingly. No costs."

10. This court has also further gone through the judgment in case of Husainbhai Taherali Amlani v. Ramjanbhai Maganlal Dani reported in 2015 Law Suit (Guj) 2297 wherein it is observed as under:

"There is no strait jacket formula to consider the sufficient cause for condoning delay. Therefore, if petitioner could remain present to proceed in the suit and though the Trial Judge refused to condone the delay, the fact remains that in such situation it would be appropriate to allow the petitioner to defend the suit, since the suit was decreed ex-parte against him in his absence. It is well settled position that the term ex-parte is being used for both the situations i.e. when the litigant is not served at all and even when though served, he could not defend the litigation for one or another reason.

Therefore, it would not be appropriate to enter into such technicalities in deciding such application. Though the law relating to condonation of delay is now attracting strict view, it cannot be ignored that otherwise it requires liberal consideration which can be referred in the form of following citations:

(i) In the case of Dakshin Gujarat Vij Company Ltd. Through Managing Director Vs. Amardeep Association, Navsari and others 2013 2 GLR 1399. The Division Bench of this Court has observed as under and such observation has been approved by Hon'ble Apex Court in SLP (Civil) No. 12142 of 2013 between the same parties.

"14. There are catena of judgments, more particularly when 'sufficient cause' and reasonable ground are not defined under the law, that in

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general, the dispute shall be resolved on its own merits rather than technicalities and that, therefore, 'sufficient cause' and 'reasonable ground' for condonation of delay cannot be defined in any narrow manner and thereby there cannot be straitjacket formula that what is 'sufficient cause' and what is 'reasonable ground' for condonation of delay, it goes without saying that 'sufficient cause' and 'reasonable ground' may be different from case to case and though particular cause or ground may not sufficient and reasonable to condone the delay in a particular case, similar ground or cause may be sufficient and reasonable enough to condone the delay in any other given case, if on judicial scrutiny of matter, it is so found by the competent Court to condone such delay."

11. In the result, the Application for condonation of delay deserves to be allowed and accordingly stands allowed subject to cost. Rule is made absolute. The Applicant to bear costs of Rs.10,000/- and deposit the same before the learned Trial Court within 4 weeks from the date of the order.

It is made clear that out of Rs.10,000/-, Opponent No.1 is permitted to withdraw Rs. 5000/- and Opponent No.2 is permitted to withdraw Rs.5000/- which shall be deposited by the Applicant before the Trial Court.

(A. C. JOSHI,J) J.N.W