Vaniben Wd/O Vinodbhai Gemabhai ... vs Mustaq Abdulsalam Kolia
2023 Latest Caselaw 2830 Guj

     C/CA/2920/2022                                       ORDER DATED: 10/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 2920 of 2022
                                       In
                        F/FIRST APPEAL NO. 31676 of 2022

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             VANIBEN WD/O VINODBHAI GEMABHAI MANDOL
                              Versus
                    MUSTAQ ABDULSALAM KOLIA
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Appearance:
NISHIT A BHALODI(9597) for the Applicant(s) No. 1,2,3,4,5
MR MAULIK J SHELAT(2500) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 10/04/2023

                                 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 1226 days occurred in preferring the appeal.

3. Mr. Bhalodi, learned advocate for the applicants submits that delay of 1227 days has occurred since after the demise of sole

C/CA/2920/2022 ORDER DATED: 10/04/2023

minors and the mother-in-law who expired on 17.2.2010 were struggling to maintain themselves and they, after making arrangement of the money for Court fees and other expenses, have proposed to prefer the appeal and it was only after receiving the compensation money, they could make arrangement for the Court fees.

4. However, vehemently objecting to the application, Mr. Maulik Shelat, learned advocate for opponent no.3 states that reasonable delay could be condoned, but inordinate delay without any justifiable cause cannot be given a concession even to the claimants who, after having received the compensation money, could not think of raising their legal issues or prefer an appeal, where insufficiency of the money could not be made a ground since the compensation amount would have been deposited by the insurance Company. Mr. Shelat further stated that because of the negligence of the claimants, the insurance Company should not be saddled with the liability of paying the

C/CA/2920/2022 ORDER DATED: 10/04/2023

interest, where interest for such delayed period would be huge in case the grounds raised in the appeal may be appreciated to enhance the compensation money.

5. In response to the said contention, Advocate Mr. Bhalodi submitted that the claimants would not pray for any interest for enhancement amount if at all granted from 15.9.2017 to 15.9.2022, which excludes the limitation period after the judgment and award dated 28.2.2017.

6. 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

meaningful manner which subserves the

C/CA/2920/2022 ORDER DATED: 10/04/2023

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

C/CA/2920/2022 ORDER DATED: 10/04/2023

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."

7. In view of the submissions made, the claimants, thus, would not be entitled to pray for the interest for a period from 15.9.2017 to 15.9.2022 and on that condition, the delay of 1226 days occurred in filing the appeal deserves to be condoned and is hereby condoned.

8. Accordingly, the present application is allowed. Let First Appeal be listed for hearing on 20.4.2023.

(GITA GOPI,J) Maulik