Gujarat High Court
Hirenbhai Gulabrai Vasani vs Birju G Vasani on 31 August, 2023
Bench: Gita Gopi
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C/CA/1081/2023 ORDER DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1081 of 2023
In
F/FIRST APPEAL NO. 2849 of 2023
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HIRENBHAI GULABRAI VASANI
Versus
BIRJU G VASANI
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Appearance:
MR MOHSIN M HAKIM(5396) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/08/2023
ORAL ORDER
1. The present application has been filed
for condonation of delay of 853 days caused in
filing the First Appeal.
2. Mr. Mohsin M.Hakim, learned advocate for
the applicant submitted that the applicant could
not immediately proceed for filing the appeal
after the judgment and award, and could applied
for the same only on 26.10.2021, and after
receiving legal advise and after making
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provisions for Court fees and other expenses,
could prefer the appeal to challenge the judgment
and award, and Covid-19 pandemic has also added
to the delay. Mr. Hakim submitted that the
applicant is willing to waive the interest for
the delayed period, in case, when the prayer for
enhancement of compensation would come to be
allowed.
3. 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
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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.
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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
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capable of removing injustice and is
expected to do so."
4. 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, the delay of 853 days
caused in filing the First Appeal is condoned.
5. It is kept open for both the parties to
agitate regarding the interest for the delayed
period at the final hearing of the appeal. The
application is allowed.
(GITA GOPI,J)
Pankaj
