Gujarat High Court
Raisa Nazirbhai Vaza vs Aasifali Abdul Mahebub on 4 October, 2022
Bench: Gita Gopi
C/CA/2240/2022 ORDER DATED: 04/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2240 of 2022
In F/FIRST APPEAL NO. 29392 of 2022
With
R/CIVIL APPLICATION NO. 2241 of 2022
In F/FIRST APPEAL NO. 29390 of 2022
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RAISA NAZIRBHAI VAZA
Versus
AASIFALI ABDUL MAHEBUB
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Appearance:
MR MOHSIN M HAKIM(5396) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 1,2.1,2.2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2.1,2.2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/10/2022
ORAL ORDER
1. Heard the learned advocate for the
applicants.
2. By way of this application under Section
5 of the Limitation Act, 1963, the applicants
have prayed for condonation of delay of 2966
days occurred in preferring the appeal.
3. Learned advocate appearing for the
applicants submits that in the year 2012, by
preferring a delay condonation application,
First Appeal was moved, but since the owner
C/CA/2240/2022 ORDER DATED: 04/10/2022
of the vehicle expired, under instructions,
Civil Application for bringing the heirs was
preferred and it was allowed and the matter
was placed at the admission stage, but
because of absence of the advocate of the
claimants, the matter stood adjourned and
thereafter, on being listed, it was submitted
before the Court of preferring an application
for bringing the heirs and legal
representatives of the deceased owner of the
vehicle on record of the Tribunal within a
period of 10 days and again, appeal came to
be allowed and accordingly, application was
moved before the Tribunal for bringing the
legal heirs and to amend the cause title in
the claim petition as well as the judgment
and award was allowed and accordingly, all
the necessary parties in the form of legal
heirs were on record.
3.1 Mr. Hakim submits that the said process
of admitting the legal heirs in the judgment
and award was not communicated to the
advocate of High Court and therefore, the
advocate on record in the First Appeal could
C/CA/2240/2022 ORDER DATED: 04/10/2022
not inform the Court about the progress and
thus, because of absence of the advocate,
appeal stood dismissed. Thereafter, the
restoration application was filed which was
allowed.
3.2 Mr. Hakim submits that the advocate,
under some misconception, withdrew the appeal
with an understanding that the process of
bringing the heirs on the cause title of the
judgment and award was required to be
exceeded prior to hearing the appeal and
hence, under some miscommunication, the
appeal stood withdrawn and the Court fees
paid on the appeal was also withdrawn. Mr.
Hakim submits that withdrawal appeal is
without any examination of the case on merits
and cause title of the award has been amended
and as all the heirs are on record, the
appeal is required to be heard on merits. Mr.
Hakim further states that the proceedings
could be against the estate of the deceased
in absence of the legal heirs and thus,
submits that the appeal is maintainable even
if no heirs are brought on record. Mr. Hakim
C/CA/2240/2022 ORDER DATED: 04/10/2022
further submits that the proceedings got
delayed and further, the pandemic added to
the delay and the applicants also faced
financial crunch and further, the claimants
lost the parents in the accident and
therefore also, there were paucity of fund,
which had led to delay of 2966 in filing the
appeal.
4. 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 meaning-
ful manner which subserves 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
C/CA/2240/2022 ORDER DATED: 04/10/2022
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 con- doned
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
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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."
5. Having heard the learned advocate for the
applicants and considering the averments made
in the application and as the delay is
sufficiently explained and in view of the
facts and circumstances of the case of the
case, the delay of 2966 days occurred in
filing the appeal deserves to be condoned and
is hereby condoned.
6. Accordingly, the present application is
allowed.
(GITA GOPI,J)
Maulik
