Gujarat High Court
The New India Assurance Company ... vs Rajabhai H. Mori (Deleted No ... on 12 January, 2023
Bench: Ashokkumar C. Joshi
C/CA/555/2019 ORDER DATED: 12/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 555 of 2019
In F/FIRST APPEAL NO. 3760 of 2019
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2 of 2019
In F/FIRST APPEAL NO. 3760 of 2019
With
CIVIL APPLICATION (FOR SET ASIDE ABATEMENT) NO. 3 of
2019
In F/FIRST APPEAL NO. 3760 of 2019
======================================================
THE NEW INDIA ASSURANCE COMPANY LIMITED
Versus
RAJABHAI H. MORI (DELETED NO NOTICE IS REQUIRED)
======================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR MAULIK J SHELAT(2500) for the Respondent(s) No. 3
NISHIT A BHALODI(9597) for the Respondent(s) No. 5,6
NOTICE SERVED for the Respondent(s) No. 2
SERVED BY AFFIX(N) for the Respondent(s) No. 7
UNSERVED EXPIRED (N) for the Respondent(s) No. 4
======================================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 12/01/2023
ORAL ORDER
Order in Civil Application No. 555 of 2019:
1. This is an application filed under Section 5 of the Limitation Act,
1963 praying for to condone the delay of 10 days caused in preferring the
C/CA/555/2019 ORDER DATED: 12/01/2023
main first appeal against the judgment and award of the learned Tribunal.
2. Having regard to the submissions made and considering the
averments made in the application, this application deserves to be allowed,
more particularly, in view of the decision of the Apex Court in Collector
Land Acquisition, Anantnag and Another V. Mst. Katiji and Others, AIR
1987 SC 1353, wherein, the Apex Court has observed as under:
"The legislature has conferred the power to condone delay by
enacting Section 51 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 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
C/CA/555/2019 ORDER DATED: 12/01/2023
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.
Making a justice-oriented approach from this perspective, there was
sufficient cause for condoning the delay in the institution of the
appeal....."
3. Accordingly, the application succeeds and is allowed accordingly.
Delay, as aforesaid, caused in preferring the main first appeal, is condoned.
Order in Civil Application No. 2 of 2019:
1. This is an application filed by the appellant - applicant praying for to
bring on record the heirs and legal representatives of the deceased
respondent No. 4 in the Civil Application No. 1 of 2019 as well as in the
main first appeal and the civil application for Stay.
2. Rule is served upon the proposed legal heirs of the deceased
respondent No. 4.
3. Regard being had to the submissions made and considering the
averments made in the application as well as the documents on record, this
application deserves to be allowed and is accordingly, allowed in terms of
paragraph 7(A) of the application. Rule is made absolute accordingly.
C/CA/555/2019 ORDER DATED: 12/01/2023
Order in Civil Application No. 3 of 2019:
1. This is an application filed by the applicant - appellant praying for to
set aside the abatement, if any, in bringing legal heirs of respondent No. 4
on record in the proceedings initiated by the applicant against the judgment
and award of the Tribunal as well as to condone the delay of 998 days
caused in preferring this application.
2. The Court has already passed the order permitting the applicant to
bring on record the legal heirs of the deceased respondent No. 4 on record in
the proceedings, as aforesaid (in Civil Application No. 2 of 2019). Further,
the learned advocate for the applicant has made available for perusal the
copies of the orders passed in the identical matters by this Court as well as
by the coordinate Bench. Accordingly, this application is also allowed.
Delay, as aforesaid, caused in filing this application is condoned and the
abatement qua deceased respondent No. 4 is set aside. The application
stands disposed of accordingly.
[ A. C. Joshi, J. ]
hiren
/40, 59, 60
