Gujarat High Court
State Of Gujarat vs Mangalbhai Ishwarbhai Patel on 1 February, 2022
Bench: Ashutosh J. Shastri
C/CA/83/2021 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 83 of 2021
In
R/LETTERS PATENT APPEAL NO. 145 of 2022
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STATE OF GUJARAT
Versus
MANGALBHAI ISHWARBHAI PATEL
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Appearance:
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the Applicant(s)
No. 1,2,3
for the Respondent(s) No. 4.1,4.2,4.3,4.4,4.5,4.6
MR JAYRAJ CHAUHAN for MR JAYESH M PATEL(617) for the
Respondent(s) No. 1,2,3
NOTICE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 01/02/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. This application has been filed under Section 5 of the Limitation
Act, 1963, seeking for condonation of delay of 509 days. The cause of
the delay has been explained in the application.
2. While considering an application for condonation of delay it is
not the length of delay but cause for delay which would be of
paramount consideration. If the cause shown is sufficient and in the
proximity of the facts obtained, such delay deserves to be condoned
irrespective of the length of delay. However, even if there is short delay
and cause shown is not in the proximity of truth or contrary to facts,
such delay cannot be condoned.
C/CA/83/2021 ORDER DATED: 01/02/2022
3. At this juncture, we may notice that the judgment of the Hon'ble
Supreme Court in the case of Collector Land Acquisition, Anantnag
and another vs. Master Katiji and others, reported in AIR 1987 SC
1353, whereunder the Lordships have illustratively narrated the
contour of the parameters required to be considered while examining
the application for condonation of delay.
4. It has been further held by the Apex Court as under :
3. The legislature has conferred the power to condone
delay by enacting Section 5 [ Any appeal or any
application, other than an application under any of the
provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period if the
appellant or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making
the application within such period.] 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
C/CA/83/2021 ORDER DATED: 01/02/2022
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.
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 step-motherly
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
C/CA/83/2021 ORDER DATED: 01/02/2022
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 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."
5. Keeping the aforesaid authoritative principles in mind, when the
cause in the instant case is noticed, the same deserves to be accepted
as it would constitute sufficient cause as indicated in Section 5 of the
Limitation Act, 1963. Hence, we condone the delay of 509 days caused
in filing the appeal. The Civil Application is hereby allowed.
(ARAVIND KUMAR,CJ)
(ASHUTOSH J. SHASTRI, J)
phalguni
