Gujarat High Court
Saiyedali Mamji Muman Maradiya vs Krushnabhai Navlabhai Patel on 21 December, 2023
Author: Gita Gopi
Bench: Gita Gopi
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C/SA/628/2022 ORDER DATED: 21/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 628 of 2022
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SAIYEDALI MAMJI MUMAN MARADIYA
Versus
KRUSHNABHAI NAVLABHAI PATEL
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Appearance:
MR SHAIVANG D MEHTA(5623) for the Appellant(s) No. 1
MR HARI K BRAHMBHATT(9070) for the Respondent(s) No. 1
UNSERVED EXPIRED (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/12/2023
ORAL ORDER
1. Heard learned advocate Mr. Shaivang D. Mehta for the
appellant and learned advocate Mr. Hari K. Brahmbhatt for
respondent No.1.
2. Learned advocate Mr. Mehta submitted that the appellant
is challenging the order dated 8.7.2022 which has not
condoned the delay and that order had ultimately led to denial
of the institution of the appeal. Hence, the present second
appeal has been preferred with the prayer to raise substantial
questions of law since the Appellate Judge has failed to
exercise the discretion in condoning the delay for filing the
regular appeal. Learned advocate submitted that filing an
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appeal is a substantial right; the delay is required to be
sufficiently explained but that would not mean that every day
delay has to be explained. Learned advocate Mr. Mehta further
submitted that the Appellate Court while passing the order on
8.7.2022 has failed to observe that after the order on
22.11.2019 in Regular Civil Suit No.11 of 2015 by the learned
Principal Civil Judge, Kaprada, the appellant had explained the
delay and since the Nation was facing COVID-19 pandemic, the
learned Appellate Judge was required to give consideration to
the said fact as was also mandated to follow the judgment of
the Hon'ble Supreme Court of India in Suo Motu Writ Petition
(C) No.3 of 2020 followed by other miscellaneous applications
where the limitation period was extended from time to time by
the Hon'ble Apex Court and if that period gets excluded, then
the delay as would be calculated would come to about 110
days.
3. Learned advocate Mr. Brahmbhatt for respondent No.1
submitted that prior to the pandemic which was declared in
the month of March 2020, the appellant had not sufficiently
explained the delay from 22.11.2019 to prefer an appeal, as
per his submission, he had applied for certified copy only on
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23.6.2021. Hence, the appellant would not have the benefit of
the judgment of the Hon'ble Apex Court to urge for the grace
to exclude the said period from the delayed time.
4. The substantial question falls for consideration of this
Court would be:
(1) Whether denial of the court in condoning the delay
would affect the substantial right of the present
appellant to file an appeal for adjudication on
merits?
5. The Hon'ble Apex Court in Suo Moto Writ Petition (C) No.3
of 2020 while dealing with the issue of sudden surge and
impact of the virus on public health and adversities faced by
litigants in the prevailing conditions, gave the directions to
relax the limitation period. The Hon'ble Apex Court after
subsequent orders excluded the period from 15.3.2020 to
28.2.2022 for the purposes of limitation as may be prescribed
under any general or special laws in respect of all judicial or
quasi-judicial proceedings. If that aspect has to be considered,
then excluding the period as stated by the learned advocate
the delay would come for about 110 days.
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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 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.
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
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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."
7. The Court is always required to adopt justice-oriented
approach while considering an application for condonation of
delay. The doctrine of equality before law demands that all the
litigants are to be accorded same treatment. The expression
'sufficient cause' has to be understood in context of the
grounds raised with a justice-oriented approach. The
legislature has conferred the power to condone delay to enable
the court to do substantial justice to parties by disposing of the
matters on merits.
8. The appellant herein had stated before the Additional
District Judge, Dharampur, District: Valsad that he came to
know about the judgment only during the revenue proceedings
and thereafter on 21.6.2021 he applied for the certified copy
and received the same on 23.6.2021.
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9. The appellant hails from Mumbai and is not a local
resident. The fact of not being aware of the judgment and
decree cannot be outrightly disbelieved though the party may
have been represented by advocate on record even though
there is an advancement of technology without any substantial
evidence to support that his lawyer had timely informed about
the judgment and decree; there would not have been any
reason to disbelieve him. A party should not suffer because of
the inaction of the advocate representing them. The
expression 'sufficient cause' as has been held in the case
referred to above in Collector, Land Acquisition, Anantnag
(supra) is adequately elastic to do substantial justice to
parties by disposing of the matters on merits. The Appellate
Court was aware of the fact that the delay condonation
application was moved for the purpose to challenge the
judgment and decree passed by the Principal Civil Judge,
Kaparda in Regular Civil Suit No.11 of 2015. Right to appeal is
a statutory and substantial right and thus is not merely
procedural right, which means that a right conferred by
statute. Unless law provides that there would not be any right
to file an appeal, the statutory right of the parties should not
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be curtailed. The Court by adopting liberal approach would
have the recourse to compensate other side by making an
order for payment of costs which could have balanced the right
of the counter party who would be aggrieved by the delay
which would effect his right as would have been found under
the Limitation Act.
10. As observed in Collector, Land Acquisition, Anantnag
(supra), no litigant would benefit lodging an appeal late and
refusing to condone delay can result into meritorious matter
thrown overboard. Thus, rather than taking technical view, this
Court considers that the substantial question raised is required
to be addressed and admitting the matter, this Court finds that
the order impugned dated 8.7.2022 in C.M.A.D.C. (Delay
Condonation Application) No.12 of 2021 is perverse and is
required to be quashed and set aside and hence is quashed
and set aside with the costs of Rs.10,000/- to be paid to the
opponent herein. The cost amount to be deposited before the
Appellate Court, Dharampur, District: Valsad.
11. In the result, delay caused is condoned and the appeal
arising from the judgment order dated 22.11.2019 in Regular
Civil Suit No.11 of 2015 be taken on file to be registered and
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be decided in accordance with law. Accordingly, the second
appeal stands disposed of.
12. It is also made clear that this Court has not expressed
any opinion on merits of the matter. The appeal be conducted
without being influenced by any of observations made
hereinabove. Cost to be paid within 15 days and the said
amount be paid to Krushnabhai Navlabhai Patel on verification
of identity.
(GITA GOPI,J)
Bharat
