Gujarat High Court
Babubhai Matai Josheph vs Sukhasing Tulasising Labana on 28 September, 2021
Bench: Ashokkumar C. Joshi
C/CA/663/2020 ORDER DATED: 28/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 663 of 2020
In F/FIRST APPEAL NO. 36490 of 2019
==========================================================
BABUBHAI MATAI JOSHEPH
Versus
SUKHASING TULASISING LABANA
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1
MS KARUNA V RAHEVAR(3818) for the Respondent(s) No. 3
RULE UNSERVED(68) for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 28/09/2021
ORAL ORDER
1. The Applicant has filed this Application for condonation of
delay of 105 days in preferring the captioned First Appeal on the
grounds stated in the memo of application.
2. Heard learned Advocate Mr. Hiren Modi for the Applicant and
Ms. Karuna Rahevar for the respondent No. 3. The Court has taken
up this matter for condoning the delay though the cause list reflects
that the respondents No. 1 and 2 are unserved.
3. Learned advocate Mr. Modi for the applicant submitted that so
far as liability is concerned, the same is not challenged against the
respondents No. 1 and 2, therefore, presence of the respondents
No. 1 and 2 may kindly be dispense with.
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 105 days and, as per catena of judicial
C/CA/663/2020 ORDER DATED: 28/09/2021
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)
prk
