Jijiben Nanji ... vs Vishal R Sharma
2021 Latest Caselaw 15172 Guj

       C/CA/2524/2019                                   ORDER DATED: 27/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CIVIL APPLICATION NO. 2524 of 2019

                        In F/FIRST APPEAL NO. 14196 of 2019

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 JIJIBEN NANJI KARIYAVARA(DIED)L/H OF JIJIBEN NANJI KARIYAVARA
                             Versus
                       VISHAL R SHARMA
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Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1,1.1,1.2,1.3,1.4,1.5
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 2
MS DIMPLE A THAKER(6838) for the Respondent(s) No. 4
RULE NOT RECD BACK(63) for the Respondent(s) No. 3
RULE UNSERVED(68) for the Respondent(s) No. 1
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     CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                  Date : 27/09/2021

                                   ORAL ORDER

1. The Applicant has filed this Application for condonation of delay of 77 days in preferring the captioned First Appeal on the grounds stated in the memo of application.

2. Heard learned Advocate Mr. Hiren M. Modi for the Applicants and learned Advocate Mr. Rathin P. Raval for Opponent No.2. The Court has taken up this matter for condoning the delay though the cause list reflects that the Opponent Nos. 1 and 3 are unserved.

3. Learned Advocate for the Opponent Mr. Rathin P. Raval has raised an objection to condone the delay in filing the captioned First Appeal.

4. Having heard the the arguments advanced by learned Advocate for the Applicant, there is no doubt that every case is required to be decided on merits rather than on technicality. Further, the delay is of 77 days and, as per catena of

C/CA/2524/2019 ORDER DATED: 27/09/2021

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. Therefore, if delay is condoned, the same would meet the ends of justice. 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.

5. 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 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."

6. Therefore, the Application deserves to be allowed and accordingly stands allowed. Delay is condoned.

Rule is made absolute.

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