Haresh Mishra (Contractor) vs Vijaybhai Babubhai Yadav
2022 Latest Caselaw 4028 Guj

       C/CA/3004/2019                                     ORDER DATED: 06/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CIVIL APPLICATION NO. 3004 of 2019

                        In F/FIRST APPEAL NO. 22519 of 2019

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                          HARESH MISHRA (CONTRACTOR)
                                      Versus
                            VIJAYBHAI BABUBHAI YADAV
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Appearance:
KRUTARTH K DESAI(9662) for the Applicant(s) No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 06/04/2022

                                   ORAL ORDER

1. Mr. Krutarth K. Desai, learned advocate for the applicant submitted that an application has been moved for condoning the delay of 143 days, but, he submits that, in fact, on the facts of the matter and considering the date of attempt to move the application under Rule 41 of the Employees Compensation Act read with Order 9 Rule 13 of Code of Civil Procedure, for applying the certified copy, having actually received so, and considering the statutory period, the actual delay would come to about 14 days only.

2. Learned advocate for the applicant submitted that the order of awarding the compensation was declared on 24.12.2018. Since the applicant had tried to move an application for setting aside the ex-parte order, but, some how not get it registered; and thus aggrieved, thereafter applied for certified copy on 01.12.2019. Learned advocate for the

C/CA/3004/2019 ORDER DATED: 06/04/2022

applicant submitted that considering the statutory period of 60 days and the time consumed for procuring the certified copy, the delay was not intentional or deliberate but the circumstances were out of control of the applicant; and thus urged to condone the delay.

3. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in AIR 1987 SC 1353 it has been observed as under :-

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice-- that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

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 condoned 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.

C/CA/3004/2019 ORDER DATED: 06/04/2022

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 malafides. 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."

4. Thus, taking into consideration the principles as laid down in the above referred judgment and when the delay is sufficiently explained, the same is condoned. The application is allowed in the aforesaid terms. Rule is made absolute with no order as to costs.

(GITA GOPI,J) A.M.A. SAIYED