Laxmibai Wd/O Chhotulal Jaiswal vs Union Of India
2022 Latest Caselaw 1372 Guj

     C/CA/1883/2021                                  ORDER DATED: 07/02/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                 R/CIVIL APPLICATION NO. 1883 of 2021
                                  In
                   F/FIRST APPEAL NO. 24951 of 2021
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                         LAXMIBAI WD/O CHHOTULAL JAISWAL
                                           Versus
                                     UNION OF INDIA
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Appearance:
SAKET A WAGHELA(8068) for the Applicant(s) No. 1
MR SUDHIR M MEHTA(2058) for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
                   Date : 07/02/2022
                    ORAL ORDER

1. Heard Mr. Saket A. Waghela, learned advocate for the applicant and Mr. Sudhir M. Mehta, learned advocate for the respondent.

2. This is an application under Section 5 of Limitation Act to condone the delay of 248 days which has occurred in preferring an appeal to assail the impugned judgment and order of the Railway Claims Tribunal.

3. Mr. Waghela, learned advocate for the applicant submits that delay in preferring an appeal has merely occurred owing to the fact that the deceased husband of the applicant the main bread winner of the family. It is his further submission that deceased husband as well as the appellant were doing labour work for their survival. Therefore, the death of husband, applicant had gone to her home town and had to a shoulder the responsibility of maintaining a family. He further submits that the learned advocate who was representing the applicant before the tribunal tried to contact her, however as she has not traceable his efforts went in vain. He further submits that the applicant had also suffer some illness as a result she

C/CA/1883/2021 ORDER DATED: 07/02/2022

could not prefer the appeal in prescribed limitation. He, therefore, urges that the delay which has occurred in assailing the impugned judgment and order of the tribunal may be condoned.

4. The respondent has resisted this application by filing affidavit in reply.

5. Mr. Mehta, learned advocate for the respondent has oppose this application. He submits that the delay is not sufficiently and satisfactorily explained. It is his further submission that the poverty and rustic background he is not sufficient reason to allowing the application for condone the delay. He submits that the applicant could have preferred the appeal in formapapus. He, therefore, urges that the delay may not be condoned.

6. I have considered the rival contentions.

7. The applicant has elaborately explained the delay which has occurred in paragraph No.6 which reads as under:-

"6. That the applicant and her deceased husband originally are resident of Maharashtra and had come to Gujarat in search of work and were residing at Anand. It is further submitted that the applicant and her husband were doing labour work and were earning daily. The applicant also was doing household work in the locality where they were residing and by doing that, she used to contribute to managing the financial affairs of their house. It is further submitted that she went into a

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state of shock after the untoward incident occurred with her husband and with such a mental state, she had preferred the claim application with the help of her Ld. Advocate below. It is further submitted that the applicant not bearing the pain of losing her husband went to her hometown in Maharashtra. It is further stated that all the responsibilities of her family members were upon her and with no earning members, she had no option left but to work non-stop to survive. It is further submitted that keeping trust in her Ld.

Advocate she left for her hometown in Maharashtra and at this age she used to go to do household works and other labour works for her living. It is further submitted she had to work for her survival and the Ld. Advocate below had no idea that she had left for Maharashtra and after passing of the impugned judgment the Ld. Advocate also tried to make a contact but he would not make the same. It is further submitted that the house of the applicant was in a distant place she had no means/ technology to contact and even the postal services are not easily accessible and therefore it was difficult for her and the Ld. Advocate below to contact each other and the man difficult was that she was uneducted and no relative of her was residing in the State of Gujarat who could help her/assist her. It is further submitted that on the other hand the Ld. Advocate below was also trying to contact her and from the record of the case he got the address of the applicant of Maharashtra and upon that address also he wrote a letter. But despite the effort by the Ld. Advocate below he could not make a contact with the applicant. It is

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further submitted that due to suc a sudden untoward incident she was also not emotionally strong and had also developed a long illness but due to such miserable condition she had to work for livelihood and suddenly in November 2019 the Ld. Advocate below received a call from the relative of the applicant residing in Maharashtra and inquired about the matter, therefore, the Ld. Advocate below conveyed about the impugned order and informed that he was regularly trying to contact her and during that conversation, the relative of the applicant informed the Ld. Advocate below about her mental condition and further conveyed that after the aforesaid untoward incident she was in a miserable financial condition and have no other support she came back to Maharashtra and at this age, she had to work for her living and during that course, she was also suffering from a long illness and due to that reason she could not make a contact. It is further submitted that during the said conversations with his relative the Ld. Advocate below advised him that the applicant can avail the legal remedy to challenge the same before this Hon'ble Court and her relative passed the phone to her where the applicant talked with her Ld. Advocate below and apprised him about her situation and stated that she was surviving by selling all her few ornaments and at this age she has to do household work to survive. It is further submitted that the Ld. Advocate below advised the applicant to avail the legal remedy available to them and challenge the impugned order but looking to their miserable financial condition the appellants requested the Ld.

C/CA/1883/2021 ORDER DATED: 07/02/2022

Advocate below that they are barely surviving and they are no condition to travel and get to their Ld. Advocate as they cannot afford the train tickets because of their limited income and if they will buy the train tickets they will have to skip one- time dinner. Therefore, the applicant asked his Ld. Advocate below that she is ready and willing to avail of the legal remedy and sought time to make some financial arrangements to travel and other expenses and during the passing of the period the crisis of the pandemic (COVID-19) was faced by the whole country her condition worsened. That after everything went to normal the applicant again started to work and started to save money to avail the legal remedy and to pay for the legal expenses and in March 2021 (approx.) the applicant contacted her Ld. Advocate below and requested her to do the needful. Thereafter, the Ld. Advocate below contacted the Ld. Advocate before this Hon'ble Court and requested to prefer this appeal and after getting all the relevant documents this appeal has been preferred. It is further submitted that as she is uneducated and due to lack of proper procedural law/law and also due to her miserable financial condition of the present applicant she was in no condition to approach his Ld. Advocate below in time as there was not any ill intention of the applicant by not preferring the captioned appeal in time. Therefore, the said reason may be considered as the main ground of delay for not filing the present appeal within the period of limitation."

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8. Considering the averments of paragraph No.6, I am of the considered view that the applicant has explained the delay which has occurred in preferring the appeal this cannot devolves to the fact that the applicant has lost her husband in the alleged railway accident. The responsibility of maintaining the family has fallen on the shoulder of the applicant who had later on also suffered of illness. Considering the overall facts, I am of the view that this is a fit case to exercise the discretion of power to condone the delay under Section 5 of Limitation Act.

9. In view of the above, the application succeeds and is hereby allowed. The delay is condoned. Rule is made absolute.

(A.G.URAIZEE, J)

Manoj