Minor Piyansukumar Alpeshbhai vs Suryakant Alias Babu Koyabhai ...
2023 Latest Caselaw 1460 Guj

     C/CA/3308/2022                                ORDER DATED: 13/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 3308 of 2022

                      In F/FIRST APPEAL NO. 24231 of 2021
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                 MINOR PIYANSUKUMAR ALPESHBHAI
                              Versus
              SURYAKANT ALIAS BABU KOYABHAI VAGHELA
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Appearance:
NISHIT A BHALODI(9597) for the Applicant(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 13/02/2023
                                ORAL ORDER

1. Heard the learned advocate for the applicant.

2. Since the appellant is minor, the present appeal is filed

through natural guardian. By way of this application under

Section 5 of the Limitation Act, 1963, the applicant has prayed

for condonation of delay of 464 days occurred in preferring

the appeal.

3. Learned advocate appearing for the applicant submits

that due to paucity of funds, the applicant could not approach

the advocate in time and further was unable to bear the

expenses, which had led to delay of 464 days caused in filing

C/CA/3308/2022 ORDER DATED: 13/02/2023

the appeal. Learned advocate further submits that since the

entire amount granted as per the judgment and order is

deposited in the FDR, the natural guardian could make any

arrangement for court fees and other expenses.

4. 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 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

C/CA/3308/2022 ORDER DATED: 13/02/2023

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."

5. Having heard the learned advocate for the applicant and

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 of the case, the delay of 464 days

occurred in filing the appeal deserves to be condoned and is

hereby condoned.

6. Accordingly, the present application is allowed. Rule is

made absolute to the aforesaid extent.

(GITA GOPI,J) A. B. VAGHELA