Yusufbhai Lalbhai Khatri vs Asifbhai Gulammuhammadbhai Sama
2023 Latest Caselaw 6159 Guj

                                                                              NEUTRAL CITATION




     C/SCA/4950/2021                            ORDER DATED: 22/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4950 of 2021

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                        YUSUFBHAI LALBHAI KHATRI
                                 Versus
                   ASIFBHAI GULAMMUHAMMADBHAI SAMA
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Appearance:
UMARFARUK M KHARADI(8155) for the Petitioner(s) No. 1
MR ISHAN H RAJDEV(11634) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 22/08/2023

                             ORAL ORDER

Judgement & Order dated 20/03/2020 passed by the learned 4th Additional District Judge, Junagadh in Misc. Civil Application No.24 of 2019 is sought to be challenged in this petition; whereby the learned first appellate Court has declined to condone the delay, sought under Section 5 of the Limitation Act caused in preferring the appeal under Section 96 of the CPC challenging the judgment and decree passed in RCS No.242 of 2014.

2. Learned Advocate for the petitioner Mr.Kharadi submits that the delay of 451 days was caused as the appellant was an illiterate person and rustic villager and he was not informed about passing of the decree by the Advocate representing him; otherwise there is no mala-fide on the part of the petitioner for not preferring the appeal in time. He has further submitted that in order to meet the principle of substantial justice the petitioner may be given opportunity to file an appeal before the learned appellate Court and therefore by imposing appropriate costs the

NEUTRAL CITATION

C/SCA/4950/2021 ORDER DATED: 22/08/2023

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present petition may be allowed.

3. Learned Advocate Mr.Rajdev for the respondent has vehemently objected to grant of this petition inter alia on the ground that no proper, sufficient and just cause has been advanced by the petitioner to prefer the appeal which has been rightly rejected by the learned appellate Court. He has therefore submitted that the petition may be dismissed.

4. Heard the learned Advocate for both the sides.

5. The Hon'ble Apex Court in case of Collector, Land Acquisition, Anantnag and Anr. Vs. Msr. Katji and Ors. reported in AIR 1987 SC 1353 has observed as thus :

"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 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."

NEUTRAL CITATION

C/SCA/4950/2021 ORDER DATED: 22/08/2023

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6. On perusal of the reasons stated in the present petition as well as application before the appellate Court, this Court is of the opinion that petitioner has explained passage of time by sufficient reasons. However, there is some lackadaisical approach appeared on the part of the petitioner in not filing the appeal within the time period. It is settled law that the Court should not decide the issue between the parties on the technical consideration and should not jettison the party litigating the cause on technical reason; but it would be just and proper if the cause before the first appellate Court to be decided on merits.

7. Since the petitioner is ready and willing to pay the cost, this Court is inclined to allow the present petition. Order dated 20/03/2020 passed by the learned 4 th Additional District Judge, Junagadh in Misc. Civil Application No.24 of 2019 is quashed and set aside and delay caused in preferring the appeal is condoned; subject to the petitioner deposits a sum of Rs.5,000/- towards the costs; within a period of one month from today; as stated by learned Advocate for the petitioner; which shall be paid to the respondent herein and by paying sufficient Court fee.

8. As the challenge made in the appeal before the appellate Court is in relation to money decree, it is expected that such appeal shall be decided within a period of six months from the date of its having registered.

9. Accordingly, present petition stands disposed of.

(J. C. DOSHI,J) sompura