Chief Engineer Uttar Gujarat Vij ... vs Ghanshyambhai Bhailalbhai Darji
2022 Latest Caselaw 4408 Guj

     C/CA/1196/2021                                   ORDER DATED: 26/04/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 1196 of 2021
                                       In
                         F/FIRST APPEAL NO. 8599 of 2020
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         CHIEF ENGINEER UTTAR GUJARAT VIJ COMPANY LTD
                            Versus
                GHANSHYAMBHAI BHAILALBHAI DARJI
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Appearance:
MS LILU K BHAYA(1705) for the Applicant(s) No. 1
MR GC MAZMUDAR(1193) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                  Date : 26/04/2022
                   ORAL ORDER

1. This Civil Application has been filed by the applicants praying for condonation of delay of 291 days in filing of the above First Appeal.

2. Learned Advocate for the applicant Ms. Lilu K. Bhaya submitted that there is a delay of 291 days in filing the First Appeal against the judgment and award dated 31.12.2018 passed by the learned Principal Senior Civil Judge, Sanand in Special Civil Suit No.325/2017. It is submitted that the judgment was pronounced on 31.12.2018 and the certified copy was applied for on 12.12.2019, which was readied on 02.10.2020 and was taken on 02.10.2020. It is further submitted that the case proceeded ex-parte and the applicant was not aware of the filing of the suit. It was only in the year 2019 when Execution Application No.1/2019 was served, the

C/CA/1196/2021 ORDER DATED: 26/04/2022

applicant became aware of the entire proceedings. Thereafter, the opinion was taken of the Advocate, the application was made for the certified copy and approval from the competent authorities. After following various procedures at the applicant's various offices / circle, the appeal was filed on 28.02.2020 and in this process, delay of 291 days has been caused. It is further stated that the delay has been sufficiently explained which is a sufficient cause and hence, this application may be allowed.

3. Learned Advocate for the respondent No.2 Mr. G.C. Mazmudar has resisted this application.

4. 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 meaning- ful manner which subserves 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:-

C/CA/1196/2021 ORDER DATED: 26/04/2022

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 con- doned 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.

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 mala fides. 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."

5. Thus, taking into consideration the principle as laid down in the above referred judgment and when the delay of 291 days is sufficiently explained, the same is condoned. The application is allowed in the aforesaid terms. Rule made absolute.

Let the main matter be listed on JUNE 7, 2022.

Sd/-

(GITA GOPI, J) CAROLINE