Gujarat High Court
United India Insurance Co Ltd vs Vrundaben Mahendrabhai ... on 21 June, 2022
Bench: Gita Gopi
C/CA/238/2022 ORDER DATED: 21/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 238 of 2022
In F/FIRST APPEAL NO. 24945 of 2021
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UNITED INDIA INSURANCE CO LTD
Versus
VRUNDABEN MAHENDRABHAI SHANABHHAI PATEL
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Appearance:
MR ANAL S SHAH(3988) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/06/2022
ORAL ORDER
1. Heard Mr. Anal S. Shah, learned advocate for the
applicant.
2. This is an application under Section 5 of the Limitation
Act for condonation of delay of 871 days which has occurred in
preferring the captioned First Appeal.
3. Mr. Anal S. Shah, learned advocate for the applicant
submitted that the additional affidavit is also filed by the
Deputy Manager of United India Insurance Company Limited to
explain the delay of 871 days caused in filing the captioned
first appeal. Learned advocate for the applicant submitted
that originally the case was filed in the court of MACT,
Panchmahals at Godhra where the insurance company had
engaged an advocate to defend the matter, but, later on in the
year 2017 the said case was transferred in MACT (Auxi.),
Panchmahals at Halol where it has been renumbered as MACP
No. 623 of 2017. The matter came up for hearing for the first
time on 06.11.2017 and on 08.11.2017 the Hon'ble Tribunal
passed the judgment and order. After receiving the opinion
C/CA/238/2022 ORDER DATED: 21/06/2022
about the impugned judgment and order and when the notice
of execution petition was received, there was a telephonic
conversation with the advocate who was engaged at Godhra
and it was observed that the liability has been wrongly placed
on the insurance company, however, the communication to the
advocate concerned in connection with the execution petition
it was found that the learned advocate representing him had
passed away because of Covid and the insurance company
was required to sought opinion from the another lawyer, and
after receiving the instructions for appointing another
advocate from the panel and seeing the rojnama; the
insurance company has deemed fit to challenge the judgment
and award; and thus learned advocate for the applicant
submits that the delay has been sufficiently explained.
4. Considering the facts and circumstances of the case and
also considering the submissions made by the learned
advocate for the applicant and in view of the averments made
in 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.
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
C/CA/238/2022 ORDER DATED: 21/06/2022
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 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.
C/CA/238/2022 ORDER DATED: 21/06/2022
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."
6. Thus, taking into consideration the principle as laid
down in the above referred judgment and when the delay
of 871 days is sufficiently explained, the same is
condoned. The application is allowed in the aforesaid
terms. Rule is made absolute with no order as to costs.
(GITA GOPI,J)
A.M.A. SAIYED
