Iffco Tokio General Insurance Co ... vs Ketan Rajnikant Rathod
2022 Latest Caselaw 4954 Guj

     C/CA/525/2022                                ORDER DATED: 08/06/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/CIVIL APPLICATION NO. 525 of 2022

                     In F/FIRST APPEAL NO. 25743 of 2021

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               IFFCO TOKIO GENERAL INSURANCE CO LTD
                               Versus
                      KETAN RAJNIKANT RATHOD
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Appearance:
MS KIRTI S PATHAK(9966) for the Applicant(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 08/06/2022

                                ORAL ORDER

1. Heard Ms. Kirti S. Pathak, learned advocate for the applicant and Mr. Hiren Modi, learned advocate for the respondent No.1.

2. This is an application under Section 5 of the Limitation Act for condonation of delay of 108 days which has occurred in preferring the captioned First Appeal.

3. Learned advocate for the applicant submitted that on receipt of the impugned judgment and award rendered by the tribunal and after verifying the facts, being distressed by the judgment, the concerned legal officer after meticulous scrutiny had sent to the competent authority for scrutinizing and sanctioning approval for preferring appeal. Thereafter the authority had comprehensive discussions with trial court panel advocate regarding the available contentions vis-a-vis findings

C/CA/525/2022 ORDER DATED: 08/06/2022

of tribunal and reasonings for non-dealing of other available defences thereof. Subsequently the competent approval authority had affirmed with drafts of First Appeal and Civil Application soon after receipt of instructions and finalized memo in the October 2020 the present appeal is filed before this court. Learned advocate for the applicant submitted that due to outbreak of coronavirus and there had been a complete national lockdown, the private companies were working with restricted functions and further the regional office had remained closed since there were consistent cases of coronavirus; thus due to that circumstances the delay has been caused on the part of the applicant - insurance company. It has been submitted that there is no malafide intention or dilatory tactics on the part of the applicant or its officers to prefer the appeal after the period of limitation. Learned advocate for the applicant submitted that this court may be pleased to condone the delay in the interest of justice.

4. The claimant is already served and represented by learned advocate Mr. Modi who objected the same saying that the delay has not been sufficiently explained; thus prayed for rejection of the application.

5. Considering the submissions made and in view of the averments made in para 2 of the application and also considering the fact that the delay has been sufficiently explained; this Court is of the opinion that the delay caused in preferring the First Appeal deserves to be condoned.

6. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in AIR 1987 SC

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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 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

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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."

5. Thus, taking into consideration the principle as laid down in the above referred judgment and when the delay of 108 days is sufficiently explained, the same is

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condoned. The application is allowed in the aforesaid terms. Rule is made absolute with no order as to costs. Let the main matter be listed on 29th June, 2022.

(GITA GOPI,J) A.M.A. SAIYED