Gujarat High Court
Melaji Fakirji Thakore vs Kankuben Gabhaji Thakore on 3 March, 2022
Bench: Ashokkumar C. Joshi
C/SCA/15471/2018 JUDGMENT DATED: 03/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15471 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MELAJI FAKIRJI THAKORE & 2 other(s)
Versus
KANKUBEN GABHAJI THAKORE & 1 other(s)
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Appearance:
MR APURVA R KAPADIA(5012) for the Petitioner(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 03/03/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr. Apurva R. Kapadia for the Petitioners.
Though served, none has remained present on behalf of the Respondents.
2. Rule.
3. By way of this Petition, filed under Article 227 of the Constitution of
C/SCA/15471/2018 JUDGMENT DATED: 03/03/2022
India, the Petitioners / Original Plaintiffs has challenged the order dated
14.8.2018 passed in Civil Miscellaneous Application No. 13 of 2018
(hereinafter referred to as "the Application") by the learned 11 th Additional
District Judge, Ahmedabad (Rural) [hereinafter referred to as "the learned Trial
Judge"], whereby the learned learned Trial Judge has rejected the Application,
seeking condonation of delay, in preferring the Appeal preferred against the
judgment and order passed by the learned Principal Senior Civil Judge,
Ahmedabad (Rural), Mirzapur dated 4.2.2014 passed below Application
Exh.19 under order 7 Rule 11 of the Code of Civil Procedure,1908 (hereinafter
referred to as "the Code") in Regular Civil Suit No. 452 of 2011, whereby the
Application filed by the Respondents (Original Defendants) came to be allowed
and thereby Suit came to be dismissed under the provision of Order 7 Rule
11(a) & (d) of the Code.
4. Learned Advocate for the Petitioners has submitted that the impugned
order runs contrary to the settled principle of law inasmuch as the Petitioners
ought to have been given opportunity to meet with their case on merits and
application filed for condonation of delay in preferring the Appeal, which ought
to have been allowed by the learned Trial Court keeping in view the liberal
approach. It is argued that the findings are contrary to the material placed on
record and therefore, the findings suffer from vice of non-application of mind
to the real controversy involved and the material placed on record. Learned
Advocate for the Petitioners has submitted that learned Judge has failed to
appreciate the oral as well as documentary evidence. It is submitted that the
learned Trial Court ought to have considered the term "sufficient cause" in
Section 5 of the Limitation Act and the delay in preferring the First Appeal
ought to have been condoned. To support his submission, learned Advocate for
the Petitioners has referred and and relied upon the judgment of the Hon'ble
Apex Court in case of Collecto v. Katiji, reported in AIR 1987 SC 1353 and
submitted that the Hon'ble Supreme Court has observed that the legislature had
conferred the power to condone the delay by enacting Section 5 of the
C/SCA/15471/2018 JUDGMENT DATED: 03/03/2022
Limitation Act in order to enable the courts to do substantial justice to the
parties by disposing of matter on merits and the expression "sufficient cause"
employed by the legislature is adequately elastic to enable the courts to apply
the law in a meaningful manner which subserves the ends of justice. Learned
Advocate for the Petitioners has further submitted that refusing to condone the
delay can result in a meritorious matter being thrown out at the very threshold
and cause of justice being defeated. Learned Advocate for the Petitioner has
further referred to and relied upon the judgment of the Hon'ble Delhi High
Court in CRL L.P. No. 219 of 2006 - CBI v. R.P.Tiwari, decided on 7.8.2014.
Learned Advocate for the Petitioners has submitted that considering the
ratio laid down by the Hon'ble Apex court and the Hon'ble Delhi High Court,
the delay ought to have been condoned by the learned Trial Judge in preferring
the Appeal.
5. This Court has considered the submissions made by the Petitioners and
also considered the contentions raised in the memo of petition and has also
perused the order dated 14.8.2018 passed by the learned Trial Judge in Civil
Misc. Application No. 13 of 2018 and has gone through the reasons recorded
by the learned Trial Judge in in the said order. Needless to state that the
guidelines while considering the applications for condonation of delay have
been far too well settled. In the case of Collector, Land Acquisition Officer
Vs. Mst. Katiji; 1987 (2) S.C.C. 107 : (AIR 1987 SC 1353), the guidelines
have been laid down as under :
"(1) Litigant does not stand benefitted by lodging an appeal late;
(2) Refusal to condone may result in meritorious matters being thrown out at
the very threshold and the cause of justice being defeated;
(3) In the matter of explanation of every day's delay, pedantic approach should
be avoided. Rational common sense pragmatic approach should be invariably
adopted;
C/SCA/15471/2018 JUDGMENT DATED: 03/03/2022
(4) Substantial justice is to be preferred against technical flaws;
(5) There is no presumption that delay is always deliberate;
(6) Injustice is to be removed."
6. Bearing in mind above principles if one examines the matter in hand,
though it is expected that the delay of each day is to be explained, the courts
are supposed to take a pragmatic view rather than a pedantic one. It is expected
that the rights are allowed to be determined on merits rather than by default.
The parties are litigating over an ancestral property. The Petitioners are the
Original Plaintiffs in the Suit. The reason explained by the Petitioners before
the learned Trial Court is that the learned Trial Court has passed order on
4.2.2014, but the Applicants' Advocate has not informed them the true and
correct facts. The Petitioners later on came to know that their Suit is dismissed
and therefore they immediately filed Application on 11.12.2017 to receive the
certified copy from the Court which is received on 15.12.2017. As per the
Petitioners, they immediately filed the Appeal within the limitation period.
7. True it is that the Law of Limitation has to be applied with all its rigors.
Even if the consequences are harsh it has to be applied in an appropriate case
even to non suit a person. However, when in the matter in hand, there is
sufficient reason demonstrated by the applicant the delay deserves to be
condoned by awarding some cost to the Petitioners / Original Plaintiffs.
8. In view of the submissions made by the learned Advocate for the
Petitioners, in the opinion of this Court, the delay in preferring the Appeal
ought to have been allowed by the learned Trial Judge in view of the various
pronouncements by the Hon'ble Apex Court.
9. The present Petition therefore deserves to be allowed. The order dated
14.8.2018 passed by the learned 11 th Additional District Judge (Ad hoc)
Ahmedabad District Court, (Rural) at Mirzapur, Ahmedabad in Civil
C/SCA/15471/2018 JUDGMENT DATED: 03/03/2022
Miscellaneous Application No. 13 of 2018 is hereby quashed and set aside.
The delay is condoned subject to the Petitioners paying costs of Rs.10,000/-,
which may be deposited before the learned Trial Court at Mirzapur within a
period of four weeks from the date of this order.
Rule is made absolute.
(A. C. JOSHI,J)
J.N.W
