Sarifaben Yusufbhai Wd/O Dece ... vs Paschim Gujarat Vij Co Ltd
2021 Latest Caselaw 13420 Guj

       C/SCA/10603/2010                                      ORDER DATED: 03/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


               R/SPECIAL CIVIL APPLICATION NO. 10603 of 2010

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        SARIFABEN YUSUFBHAI WD/O DECE YUSUFBHAI & 2 other(s)
                             Versus
               PASCHIM GUJARAT VIJ CO LTD, & 2 other(s)
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Appearance:
MR ASIT B JOSHI(2567) for the Petitioner(s) No. 1,2,3
MR. K.M. ANTANI, AGP (1) for the Respondent(s) No. 2
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                                  Date : 03/09/2021

                                   ORAL ORDER

1. This petition is filed by the petitioners challenging the order dated 06.04.2010 passed in Civil Misc. Application No. 2 of 2009 by the learned Additional District Judge and Presiding Officer, Fast Track Court, Veraval, Camp at Una refusing to condone the delay of 10 months and 9 days in preferring the First Appeal against the judgment and decree passed by the learned Additional Senior Civil Judge, Veraval dated 31.01.2008 in Regular Civil Suit No. 568 of 2003, whereby the suit filed by the petitioners praying compensation of Rs. 1,00,000/- was rejected for the death of her husband who had died because of electrocution as a consequence of rash and negligent act of the respondent - original defendant in the suit.

2. Heard Mr. Asit B. Joshi, learned advocate for the

C/SCA/10603/2010 ORDER DATED: 03/09/2021

petitioners and Mr. Dipak R. Dave, learned advocate for respondent No. 1 - original defendant in the suit. The explanation offered by the petitioners is that she is a widow and having liability of her minor children, and therefore, she could not prefer appeal within the period prescribed under the Limitation Act. At the sametime, it is sought to be explained by her that she was unable to contact her Advocate within the period of limitation as she was to undertake the liability of bringing up her minor children satisfying all their needs.

3. The learned Judge considered it to be no reasonable explanation, and therefore, delay caused in preferring the Appeal was not condoned and the application came to be rejected.

4. Mr. Deepak R. Dave, learned advocate for respondent No. 1 drawing attention to the affidavit-in- reply filed by respondent No. 1 - original defendant, submitted that against the order impugned, Civil Revision Application would be maintainable, and therefore, this petition may not be entertained.

5. While considering the application for condonation of delay, the Court should adopt pragmatic approach. The Court cannot be oblivious of the fact that an illiterate widow lady with minor children may not be able to pursue the case within time frame period. Unless and until the delay is deliberate and / or by negligent act it has occurred, the Court may not encourage such ground. However, in absence of such reasons, normally, the delay

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to an extent could have been condoned by the Court. By condoning the delay, the Court is not allowing the Appeal but only reviving the dead right of the litigant.

6. The objection raised on behalf of respondent No. 1 about the maintainability of this petition as Civil Revision Application should have been filed, is required to be rejected outright. Nomenclature or title of the matter does not matter, more particularly when the petition is already admitted in the year 2010, if ultimately, the outcome of the petition, either it may be Special Civil Application or a Civil Revision Application would remain the same. The proceedings which could be filed in other nomenclature should not come in the way of the Court for doing substantial justice.

7. In view thereof, I hereby quash and set aside the impugned order dated 06.04.2010 passed by the learned Additional District Judge and Presiding Officer, Fast Track Court, Veraval, Camp at Una rendered in Civil Misc. Application No. 2 of 2009. Consequently the Appeal preferred by the petitioners be heard on its own merits as and when it is placed before the competent Court.

8. The present petition is allowed. Rule is made absolute to the aforesaid extent.

(UMESH A. TRIVEDI, J) AMAR SINGH