Gujarat High Court
Dhirubhai Dayabhai Kharak vs Legal Heirs Of Deceased Narshibhai ... on 15 December, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/CA/1881/2023 ORDER DATED: 15/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1881 of
2023
In
F/SECOND APPEAL NO. 17152 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In
F/SECOND APPEAL NO. 17152 of 2023
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DHIRUBHAI DAYABHAI KHARAK
Versus
LEGAL HEIRS OF DECEASED NARSHIBHAI UKABHAI KHARAK
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Appearance:
for the Applicant(s) No. 6
MR UI VYAS(1000) for the Applicant(s) No.
1,2,3,4,5,6.1,6.2,6.3,6.4,6.5,7.2,7.3,7.4,7.5,7.6,7.7
MR ABHISHEK R SHARMA(10751) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6
MR VIMAL A PUROHIT(5049) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/12/2023
ORAL ORDER
ORDER IN CIVIL APPLICATION (FOR CONDONATION OF
DELAY)
1. This Application has been filed praying for
condonation of delay of 15 days in filing of the
above Second Appeal.
2. It is submitted that only after procuring the certified
copies of the judgments of the learned Trial Court as
NEUTRAL CITATION
C/CA/1881/2023 ORDER DATED: 15/12/2023
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well as the learned Appellate Court, the applicants
could seek legal advice and thereafter, the applicants
had to make necessary arrangements for the
mandatory expenses and then the Appeal could be
preferred; all these factors have contributed to the
above delay.
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 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
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C/CA/1881/2023 ORDER DATED: 15/12/2023
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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."
4. 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 15 days in
filing of the Second Appeal is condoned.
Sd/-
(GITA GOPI,J)
NEUTRAL CITATION
C/CA/1881/2023 ORDER DATED: 15/12/2023
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ORDER IN CIVIL APPLICATION (FOR STAY)
1. The earlier order of this Court dated 21.11.2023 is
extended till JANUARY 10, 2024.
2. Let the present Civil Application (for Stay) alongwith
the Second Appeal No.17152 of 2023 be listed on
JANUARY 10, 2024.
Sd/-
(GITA GOPI,J)
CAROLINE / DB-1 # 15 & # 25
