Gujarat High Court
Premsingh Ramaji Chauhan vs Bharatsing Dilipsing Chauhan on 13 July, 2022
Bench: Gita Gopi
C/CA/557/2021 ORDER DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 557 of 2021
In F/FIRST APPEAL NO. 4381 of 2021
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PREMSINGH RAMAJI CHAUHAN
Versus
BHARATSING DILIPSING CHAUHAN
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Appearance:
MR GAURANG K CHAUHAN(9858) for the Applicant(s) No. 1
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 4
RULE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/07/2022
ORAL ORDER
1. It is submitted by Mr. Kartik Barot, learned advocate for
Mr. Jigar Gadhvi, learned advocate for the applicant that the
respondent No.3 being the driver of the truck could not be
served though attempt has been made to get him served after
procuring his address, still, however, inspite of due diligence,
he could not be served. Learned advocate for the applicant
submits that since the owner of the jeep and the insurance
company as well as the Chief Secretary are on record; the
presence of the driver as respondent No.3 would not be
necessary, and thus make a prayer to delete the respondent
No.3 from the cause title. The record shows that many
attempts have been made to serve respondent No.3. As per
the judgment and award of the tribunal in MACP No. 926 of
2004, the driver was served but he did not appear. Considering
this fact the driver is ordered to be deleted from the cause title
C/CA/557/2021 ORDER DATED: 13/07/2022
as respondent No.3.
2. This civil application has been filed praying for
condonation of delay of 760 days in filing the captioned First
Appeal.
3. Learned advocate for the applicant submitted that the
applicant upon disposal of the claim petition approached his
lawyer to file necessary appeal and he was informed to make
arrangement for necessary court fees as well as expenses and
other fees for filing appeal before the Hon'ble Court. However,
he was not having sufficient money to bear the court fees,
expenses as well as other fees of the lawyer at the relevant
time and he had to make necessary arrangements for the
same. In view of the aforesaid circumstances the delay of 760
days has been caused in preferring the captioned appeal.
4. Learned advocate for the applicant 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
applicant is 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.
5. 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
C/CA/557/2021 ORDER DATED: 13/07/2022
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
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
C/CA/557/2021 ORDER DATED: 13/07/2022
grounds but because it is capable of removing injustice
and is expected to do so."
6. Considering the submissions advanced and in view of
the facts and circumstances of the case and the ratio laid
down in the above judgment, the present application is
allowed and the delay of 760 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
