Gujarat High Court
Laxmiben Wd/O Kishanbhai ... vs Abdulkasam Harun Majethi on 17 October, 2022
Bench: Gita Gopi
C/CA/2723/2022 ORDER DATED: 17/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2723 of 2022
In
F/FIRST APPEAL NO. 34564 of 2022
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LAXMIBEN WD/O KISHANBHAI BHIKABHAI PRAJAPATI
Versus
ABDULKASAM HARUN MAJETHI
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Appearance:
MR PARESH M DARJI(3700) 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 : 17/10/2022
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 2132
days occurred in preferring the appeal.
3. Mr. Darji, learned advocate appearing for
the applicants submits that after the
judgment and award was passed on 30.9.2014,
the applicants found error in the calculation
C/CA/2723/2022 ORDER DATED: 17/10/2022
while passing the judgment and the claimants
found that the personal expenses amount has
been considered as loss of dependency and
therefore, Restoration Application along with
delay condonation application was filed on
20.2.2015. Mr. Darji submits that the delay
condonation application was allowed on
10.10.2017 and after that, Review Application
no.1 of 2018 was taken up for hearing and on
1.2.2021, the same came to be rejected as not
maintainable. It is further submitted that
the delay has occurred since the claimants
were before the Court for the judicial
process and that the whole process had led to
delay of about 2132 days for filing an appeal
against the impugned judgment and award
passed on 30.9.2014.
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
C/CA/2723/2022 ORDER DATED: 17/10/2022
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
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
C/CA/2723/2022 ORDER DATED: 17/10/2022
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."
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 2132 days occurred in
C/CA/2723/2022 ORDER DATED: 17/10/2022
filing the appeal deserves to be condoned and
is hereby condoned.
6. Accordingly, the present application is
allowed.
(GITA GOPI,J)
Maulik
