Gujarat High Court
Ushaben Ranchhodbhai ... vs Sureshkumar Mahavir Jat on 6 July, 2022
Bench: Gita Gopi
C/CA/983/2022 ORDER DATED: 06/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 983 of 2022
In F/FIRST APPEAL NO. 27053 of 2020
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USHABEN RANCHHODBHAI SODHAPARMAR
Versus
SURESHKUMAR MAHAVIR JAT
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Appearance:
NISHIT A BHALODI(9597) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/07/2022
ORAL ORDER
1. This civil application has been filed praying for
condonation of delay of 648 days in filing the captioned
First Appeal.
2. Mr. Nishit A. Bhalodi, learned advocate for the applicant
submitted that the dealing advocate conveyed to the
appellant regarding the judgment and amount of
compensation allowed on 18.06.2018. The applicant
informed the dealing advocate that he will reply to him
after consulting her family members. That the applicant
not being educated was not aware about the legal
position. Learned advocate for the applicant submitted
that thereafter the applicant consulted her family
members and elders who are educated and received the
C/CA/983/2022 ORDER DATED: 06/07/2022
advice that the applicant may file first appeal before the
High Court of Gujarat challenging the impugned order.
That the applicant contacted the dealing advocate on
06.11.2018 and instructed to file first appeal. Thereafter
the dealing advocate sent the copy of judgment and
award to the High Court advocate on 24.12.2018. The
High Court advocate raised further requirements of the
documents on 06.02.2019. The dealing advocate
arranged to send the requisite documents to the High
Court advocate on 30.04.2019 where he opined for filing
of first appeal on 12.06.2019 as the High Court advocate
was not available during the summer vacation; therefore
there was delay in sharing the opinion for filing appeal.
The High Court advocate additionally raised requirement
of certified copies of the judgment and award as the
copies sent were photocopy of the same documents. The
dealing advocate tried to find out the certified copies but
it was misplaced in the office and therefore some time
was consumed in finding out the certified copies. That
the appellant visited the office of dealing advocate on
12.01.2020 to inquire about the status of the first appeal.
The dealing advocate replied that due to work load and
oversight he was not able to send the certified copies to
the High Court till date. The dealing advocate applied
for certified copies on 19.03.2020 and received the same
on 06.08.2020. The dealing advocate sent the certified
C/CA/983/2022 ORDER DATED: 06/07/2022
copies to the High Court advocate on 30.08.2020.
Subsequently the High Court advocate sent the
application for condonation of delay for affidavit on
18.09.2020. The applicant went to the office of the
dealing advocate on 28.10.2020 for executing affidavit. In
view of the aforesaid circumstances the delay of 648 days
has been caused in preferring the captioned appeal.
3. Mr. Nishit Bhalodi, learned advocate has relied upon
the judgment of the Hon'ble Apex Court in the case of K.
Subbarayudu v. Special Deputy Collector (Land
Acquisition) reported in 2017 (12) SCC 840. It is
submitted that the cause for delay should receive liberal
construction so as to advance substantial justice. It is
submitted that the applicants are ready and willing to
forego the interest and the consequential statutory
benefits during the delayed period and thus prayed for
liberal consideration of the sufficient cause.
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 adequately elastic to enable the courts to
C/CA/983/2022 ORDER DATED: 06/07/2022
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 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 malafides. 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. Considering the submissions advanced and in view of the
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facts and circumstances of the case and the ratio laid
down in the above judgment, the present application is
allowed and the delay of 648 days in filing the
captioned First Appeal is condoned, with a condition that
the applicant shall not be entitled to interest for the
period of delay. Rule is made absolute with no order as
to costs.
(GITA GOPI,J)
A.M.A. SAIYED
