Kanubhai Purushottambhai Patel vs State Of Gujarat
2022 Latest Caselaw 9954 Guj

       C/CA/3263/2022                            ORDER DATED: 09/12/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CIVIL APPLICATION NO. 3263 of 2022
                                     In
            F/LETTERS PATENT APPEAL NO. 32913 of 2022
                                    With
            F/LETTERS PATENT APPEAL NO. 32913 of 2022
                                      In
            SPECIAL CIVIL APPLICATION NO. 5455 of 2019
                                    With
               F/CIVIL APPLICATION NO. 32915 of 2022
                                    With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                                     In
            F/LETTERS PATENT APPEAL NO. 32913 of 2022
                                      In
            SPECIAL CIVIL APPLICATION NO. 5455 of 2019
                                    With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2022
                                     In
            F/LETTERS PATENT APPEAL NO. 32913 of 2022
                                      In
            SPECIAL CIVIL APPLICATION NO. 5455 of 2019
=============================================
                 KANUBHAI PURUSHOTTAMBHAI PATEL
                                   Versus
                           STATE OF GUJARAT
=============================================
Appearance:
NILAY H PATEL(7856) for the Applicant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,4,5,
6,7,8,9
 for the Respondent(s) No. 1,2,3,4
MR PINAKIN B RAVAL(3468) for the Respondent(s) No. 5
=============================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                              and
           HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 09/12/2022
ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. Heard Shri Nilay H. Patel, learned counsel appearing for

C/CA/3263/2022 ORDER DATED: 09/12/2022

the appellants - applicants and Mr. Pinakin B. Raval, learned

counsel appearing for the fifth respondent (writ applicant before

the learned Single Judge). No notice is issued to other

respondents since this appeal/application is being disposed of at

the preliminary stage itself without any adverse order being

passed against respondents who are yet to be served and also

having regard to the fact that we are examining as to whether

notice is to be issued to respondents on the application for

condonation of delay.

2. The fifth respondent was the writ applicant before the

learned Single Judge in Special Civil Application 5455 of 2019

and he had sought for a direction to the respondents to remove

or stop illegal/additional construction put up by the plot holders

in the Society and pending admission of said Special Civil

Application, an interim payer was sought for to direct the

respondent no. 2 therein namely, the District Development

Authority, Mehsana (who is also second respondent herein) to

consider the representation dated 03.02.2014 submitted by the

writ applicant and others within a stipulated time. The learned

C/CA/3263/2022 ORDER DATED: 09/12/2022

Single Judge by impugned order dated 15.03.2019 has directed

the District Development Officer, District Panchayat, Mehsana

to look into the matter and to do the needful. Appellants herein

who claim to be the plot holders in the Society are contending

that they are aggrieved by the said direction. Hence, they, have

preferred F/Letters Patent Appeal 32913 of 2022 and on

account of they not being parties to the Special Civil

Application, have filed Civil Application 3263 of 2022 seeking

leave of the Court to appeal against the said order. Since there

is delay of 549 days in filing the appeal, application for

condonation of delay has been filed. In the normal course, this

Court would have issued notice on the delay application as well

as on the main matter and application seeking leave to appeal.

Respondent no. 5 herein is the writ applicant and is on caveat.

However, we do not propose to issue notice to others namely,

respondents 1 to 3 herein, since we are examining as to whether

any fruitful purpose would be served in issuing notice to them.

No litigant would stand to benefit in approaching the Court

belatedly. While considering an application for condonation of

delay, it is not the length of delay, but the cause for delay,

C/CA/3263/2022 ORDER DATED: 09/12/2022

which would be of paramount consideration. If the delay has

been explained, which would be in the proximity of truth, such

delay deserves to be condoned. On the other hand, where the

litigant is indolent, negligent, careless and would not approach

the Court with clean hands, in such circumstances, even if there

a short delay, it does not deserve to be condoned. It all depends

upon facts and circumstances of each case. There cannot be any

straight- jacket formula prescribed in this regard. However, the

fact remains that if delay is explained with sufficient cause, as

indicated in Section 5 of the limitation Act, 1963, such delay

deserves to be condoned. At this juncture, we are of the

considered view, it would be apt and appropriate to note the

judgment of the Hon'ble Apex Court in the case of Collector,

Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors.

reported in AIR 1987 SC 1353 which reads :

"3.The legislature has conferred the power to condone delay by enacting Section 51 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

C/CA/3263/2022 ORDER DATED: 09/12/2022

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.

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/3263/2022 ORDER DATED: 09/12/2022

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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non- grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing

C/CA/3263/2022 ORDER DATED: 09/12/2022

the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

2.1. Keeping the salutary principles enunciated by the Hon'ble

Apex Court and the contours indicated in the above judgment

which are illustrative and not exhaustive, when the facts on

hand are examined, it would clearly indicate that question of

issuing notice on the application for condonation of delay would

not arise and it would only be in exercise in futility since even in

the ultimate analysis when the order of the learned Single Judge

is being sustained for the reasons indicated herein below and as

such, there is no need of issuance of notice to respondents

2.2. As could be seen from the impugned order dated

15.03.2019, the only direction which has been issued is to the

District Development Officer, District Panchayat, Mehsana to

look into the matter. If at all appellants are having any interest,

they would be at liberty to approach the District Development

Authority, District Panchayat, Mehsana by submitting

C/CA/3263/2022 ORDER DATED: 09/12/2022

appropriate representation. In fact, the order of the learned

Single Judge does not place any embargo on the said authority

while examining the matter to examine the claim of appellants.

Hence, we are of the considered view that entertaining of the

appeal or condoning the delay and granting leave to appeal,

would only be an exercise in futility and it would serve no

fruitful purpose. Hence, we dismiss the application for

condonation of delay as well as leave to appeal, consequently

the appeal also subject to observations made herein-above.

3. Pending applications if any, stand consigned to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) phalguni