Gujarat High Court
Patel Kailashben Sureshbhai ... vs Abdulgani Bukman Shaikh Deleted on 8 August, 2022
Bench: Gita Gopi
C/CA/1457/2022 ORDER DATED: 08/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1457 of 2022
In
F/FIRST APPEAL NO. 18514 of 2021
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PATEL KAILASHBEN SURESHBHAI ALIAS JAGDISHBHAI
Versus
ABDULGANI BUKMAN SHAIKH DELETED
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Appearance:
MR KK THAKKAR(2834) for the Applicant(s) No. 1,2
for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/08/2022
ORAL ORDER
1. This Application has been filed praying for
condonation of delay of 685 days in filing of the
above First Appeal.
2. Learned Advocate for the applicants submits that the
judgment and award was delivered in the year 2017
but the Advocate informed the applicant only in the
third week of January 2018, however, because of the
financial crisis, the applicant could not contact his
Advocate. Further, the applicant had fallen sick and
he had to manage his family. In the month of May
2019, the concerned Advocate was not available and
C/CA/1457/2022 ORDER DATED: 08/08/2022
therefore, the applicant could only contact him in
July 2019 whereupon the applicant was told to get
the papers and certified copies. It is further
submitted that there were marriage functions in the
family and also the festival of Diwali had
commenced, so the applicant could get the documents
only in December 2019, however, the certified copies
were not available and the applicant could manage to
get them in February 2020. In addition, the nation
wide lockdown was declared and therefore, further
delay took place. There were financial constraints
and health issues in the family and all these have
contributed to the above 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 meaning- ful manner which subserves
C/CA/1457/2022 ORDER DATED: 08/08/2022
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 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.
C/CA/1457/2022 ORDER DATED: 08/08/2022
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. Considering the submissions advanced and in view of
the facts and circumstances of the case and the ratio
laid down in the above judgment, the present
application is allowed and the delay of 685 days in
filing of the First Appeal is condoned.
Sd/-
(GITA GOPI, J)
CAROLINE
