Gujarat High Court
Yunusbhai Mumredbhai Sipai vs Roshanben Mumredbhai Sipai on 13 July, 2022
Bench: Gita Gopi
C/CA/21/2022 ORDER DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 21 of 2022
In F/FIRST APPEAL NO. 26228 of 2021
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YUNUSBHAI MUMREDBHAI SIPAI
Versus
ROSHANBEN MUMREDBHAI SIPAI
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Appearance:
MR KK THAKKAR(2834) for the Applicant(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/07/2022
ORAL ORDER
1. This civil application has been filed praying for
condonation of delay of 720 days in filing the captioned First
Appeal.
2. Learned advocate for the applicant submitted that the
learned tribunal has delivered the judgment on 20.01.2018,
the advocate for applicant applied for copy of judgment on
19.02.2020 and the copy was delivered to him on 05.02.2020.
It is submitted that the advocate of the applicant has informed
to the applicants in third week of February, 2018, after getting
information about the order passed but they have not
discussed about entire merits of the case. It is further
submitted that the applicants were distressed due to financial
crisis and therefore unable to meet their advocate in the
tribunal and thereafter they only could met their advocate in
June 2018, after vacation in the court and at that time they
were shocked to know that the awarded amount is very less
C/CA/21/2022 ORDER DATED: 13/07/2022
therefore the applicant discussed about the case and the
applicant came to know that the tribunal has erred in not
considering the case for income and also amount has not been
granted under some heads. It is further submitted that the
applicants were advised around July 2018 by an advocate
relative to get the certified copies of all the relevant
documents from the tribunal which needed time and patience.
In view of the aforesaid circumstances the delay of 720 days
has been caused in preferring the captioned appeal.
3. 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
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
C/CA/21/2022 ORDER DATED: 13/07/2022
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."
4. 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 720 days in filing the captioned
C/CA/21/2022 ORDER DATED: 13/07/2022
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
