Santoshidevi W/O Radheshyam ... vs Narendra Parmeshwar Thakur
2021 Latest Caselaw 15287 Guj

      C/CA/4743/2019                                      ORDER DATED: 28/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CIVIL APPLICATION NO. 4743 of 2019

                       In F/FIRST APPEAL NO. 30048 of 2019
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        SANTOSHIDEVI W/O RADHESHYAM CHATURBHAI ASOPA
                            Versus
                NARENDRA PARMESHWAR THAKUR
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Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Respondent(s) No. 3
UNSERVED EXPIRED (R)(69) for the Respondent(s) No. 2
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 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 48 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. Chirayu Mehta for respondent No.3. The Court has taken up this matter for condoning the delay though the cause list reflects that the respondent No. 2 is unserved expired.

2.1 Learned advocate for the applicants submits that the presence of the respondent No. 2 may kindly be dispense with and he would take necessary steps at the time of filing of appeal.

3. Learned Advocate for the Opponent 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

C/CA/4743/2019 ORDER DATED: 28/09/2021

required to be decided on merits rather than on technicality. Further, the delay is of 48 days and, as per 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. 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