Gujarat High Court
Pratapbhai Manubhai Patel ... vs L H Of Late Raghubhai Dhanabhai ... on 20 April, 2023
Bench: Rajendra M. Sareen
C/CA/3436/2022 ORDER DATED: 20/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 3436 of 2022
In
F/SECOND APPEAL NO. 32665 of 2022
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PRATAPBHAI MANUBHAI PATEL THROUGH POA JIGARBHAI
PRATAPBHAI PATEL
Versus
L H OF LATE RAGHUBHAI DHANABHAI BHARVAD -
BHARATBHAI RAGHUBHAI BHARVAD
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Appearance:
DIPAK N JOSHI(1689) for the Applicant(s) No. 1
MR NILESHKUMAR H PIPALIYA(11747) for the Applicant(s) No. 1
MR DIGANT M POPAT(5385) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 20/04/2023
ORAL ORDER
1. This is an application filed for condonation of delay of
122 days occurred in filing the second appeal.
2. Heard learned advocates for the respective parties.
3. Mr. Joshi, learned advocate for the applicant submits
that judgment and order in Regular Civil Appeal no.298 of
2018 was passed on 8th April, 2021 and the appellant being
senior citizen above 80 years was in depression and suffering
from mental stress due to outbreak of Covid-19 pandemic, the
appeal could not be filed within the stipulated time and he
prayed to condone the delay.
C/CA/3436/2022 ORDER DATED: 20/04/2023
4. Mr. Popat, learned advocate appeared on behalf of the
respondent and has vehemently objected the present
application and submitted that two Courts have given the
concurrent findings and the entire case of the appellant is
crystallized and as such no cogent and convincing reasons
have been assigned by the appellant for the delay occurred in
filing of this appeal.
5. 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 lifepurpose 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.
C/CA/3436/2022 ORDER DATED: 20/04/2023
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
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."
6. Considering the submissions advanced and in view of the
facts and circumstances of the case and the ratio laid down in
the above judgment, the present application is allowed and
the delay of 122 days in filing of the appeal is condoned. Rule
C/CA/3436/2022 ORDER DATED: 20/04/2023
made absolutely.
7. Registry is directed to list the appeal after the period of
four weeks.
(RAJENDRA M. SAREEN, J.)
AMAR RATHOD...
