Gujarat High Court
Jasuben Rameshbhai Rathod vs Batukbhai Nanjibhai Rathod on 22 August, 2022
Bench: Gita Gopi
C/CA/1602/2022 ORDER DATED: 22/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1602 of 2022
In
F/FIRST APPEAL NO. 19154 of 2022
==========================================================
JASUBEN RAMESHBHAI RATHOD
Versus
BATUKBHAI NANJIBHAI RATHOD
==========================================================
Appearance:
MR H M SHAH(3997) for the Applicant(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 1,2,3
MR KUNAL S SHAH for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/08/2022
ORAL ORDER
1. Heard the learned advocates appearing for
the respective parties.
2. By way of this application under Section
5 of the Limitation Act, 1963, the
applicant has prayed for condonation of
delay of 1536 days occurred in preferring
the appeal.
3. Mr. Shah, learned advocate for the
applicant submits that the Claim Petition
was filed in the year 2007 and because of
delay in the judgment, the applicants had
C/CA/1602/2022 ORDER DATED: 22/08/2022
not been in touch with the advocate and
when the applicants filed the execution
petition, the applicants came to know
that though there is a valid policy, the
judgment is contrary to the provisions of
law arising out of the same accident and
thereafter, two contrary views have been
taken by two different Tribunals. It was
only when the execution proceedings were
initiated, it was informed that the
judgment is required to be challenged.
Thus, there is a delay of 1536 days
caused in filing the appeal.
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
C/CA/1602/2022 ORDER DATED: 22/08/2022
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:-
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
C/CA/1602/2022 ORDER DATED: 22/08/2022
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. Having heard the learned advocates
appearing for the respective parties and
considering the averments made in the
application and as the delay is
sufficiently explained and in view of the
facts and circumstances of the case of
C/CA/1602/2022 ORDER DATED: 22/08/2022
the case, the delay of 1536 days occurred
in filing the appeal deserves to be
condoned and is hereby condoned.
6. Accordingly, the present application is
allowed.
(GITA GOPI,J)
Maulik
