Gujarat High Court
Ashokbhai Rameshbhai Tadpada vs Kiritbhai Rameshbhai Tadpada on 10 April, 2023
Bench: Sandeep N. Bhatt
C/SCA/6020/2022 ORDER DATED: 10/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6020 of 2022
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ASHOKBHAI RAMESHBHAI TADPADA
Versus
KIRITBHAI RAMESHBHAI TADPADA
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Appearance:
MR DHAVAL N VAKIL(3556) for the Petitioner(s) No. 1
MR RISHIN R PATEL(7222) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/04/2023
ORAL ORDER
1. The present petition is filed challenging the
th
Additional District Judge, Anand, in Civil Miscellaneous
Application No.165 of 2021 below Exh.1, whereby the
delay caused in preferring the appeal was not condoned.
2. Heard learned advocates.
3. Learned advocate Mr.Vakil for the petitioner
submitted that the petitioner herein is the original
defendant in Regular Civil Suit No.10 of 2016, whereby
the learned trial Court has passed the judgment and
decree on 08.08.2019 and being aggrieved by the same,
C/SCA/6020/2022 ORDER DATED: 10/04/2023
the defendant filed appeal on 02.09.2021 with an
application for condonation of delay. He submits that the
delay is caused due to the outbreak of pandemic of
COVID-19 and the closure of Courts for certain period.
He has drawn the attention of this Court to the recent
judgment of Hon'ble Apex Court and submitted that the
Hon'ble Apex Court has taken suo motu cognizance of
the same and vide order dated 10.01.2022 passed in
Miscellaneous Application No.21 of 2022 in Miscellaneous
Application No.665 of 2021 in Suo Motu Writ Petition
(C) No.3 of 2020, has directed to exclude the period from
15.3.2020 to 28.2.2022 for the purpose of limitation. He,
therefore, submitted that the order of the learned lower
appellate Court is apparently erroneous. He further
submitted that the lower appellate Court has not
considered the peculiar circumstances of pandemic. He,
therefore, prayed to allow this petition.
4. Per contra, learned advocate Mr.Patel for the
respondent has strongly opposed this petition. He has
submitted that the impugned judgment and decree is
passed on 08.08.2019 and 30 days appeal period will be
over on 08.09.2019, however, the present petitioner has
C/SCA/6020/2022 ORDER DATED: 10/04/2023
filed the appeal with delay condonation application in
September, 2021 and there is no explanation shown for
the delay. He has further submitted the Court below has
given cogent and convincing reasons in paragraphs 6 and
7 of the impugned order by dealing with the aspect that
the lock-down started in the later part of month of 2020
and therefore the Court has believed that the petitioner
has not given explanation for the delay caused. The
reason stated by the petitioner for the delay is not valid
reason. He therefore submitted that since the petitioner
is not vigilant in pursuing his remedy, the order of the
learned lower appellate Court is just and proper and
therefore this petition be dismissed.
5. Considered the rival submissions and heard the
learned advocates for the parties. Though the judgment
and order is passed by the trial Court on 08.08.2019 and
the appeal is required to be filed within 30 days
thereafter, it happens that many times the petitioner
may have many constraints like money, not proper
advice by advocate, etc., more particularly health ground
in a given case and could not adhere to the period of
limitation. The Apex Court in the case of Collector,
C/SCA/6020/2022 ORDER DATED: 10/04/2023
Land Acquisition, Anantnag and another V/s Mst.Katiji
and Others reported in AIR 1987 SC 1353 has held that
the Court should not take pedantic approach in the
matter and not take high technical approach on the
condonation of delay and the parties should be given
reasonable opportunity to proceed with the matter on
merits unless there is gross negligence or unreasonable
delay which may cause prejudice to the rights of the
other parties.
6. Even considering the latest judgment of the
Apex Court in the case of suo motu proceedings
mentioned above, the period from 15.3.2020 to 28.2.2022
is to be excluded for the purpose of delay and if such
period is excluded, there is no much delay and therefore
also the learned lower appellate Court has committed
error in dismissing the delay condonation application.
7. In view of the above, the following order is
passed.
7.1 This petition is allowed.
7.2 The impugned order dated 30.12.2021 passed
C/SCA/6020/2022 ORDER DATED: 10/04/2023
th
by the learned 4 Additional District Judge, Anand, in
Civil Miscellaneous Application No.165 of 2021 below
Exh.1 is quashed and set aside.
7.3 The delay caused in filing the appeal against
the order dated 08.08.20190 passed in Regular Civil
Suit No.10 of 2016 is condoned, on condition that the
petitioner herein shall pay the cost of Rs.10,000/- before
the appellate Court below, within a period of 10(ten)
days from the date of receipt of this order.
7.4 The learned lower appellate Court shall
register the appeal.
8. It is open for the respondent to withdraw the
said amount of cost from the appellate Court below by
filing appropriate application and if such application is
made by the respondent, the appellate Court below shall
pay the said amount to the respondent, in prescribed
procedure, after proper verification.
9. It is expected that the appeal shall be
proceeded, as expeditiously as possible.
C/SCA/6020/2022 ORDER DATED: 10/04/2023
10. It is clarified that this Court has not
expressed any opinion on merits.
(SANDEEP N. BHATT,J)
M.H. DAVE
