Gujarat Industrial Investment ... vs Mahendra V Shah
2023 Latest Caselaw 5121 Guj

     C/CA/1666/2022                                 ORDER DATED: 03/07/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 1666 of 2022

                      In F/FIRST APPEAL NO. 25650 of 2022
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       GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD
                            Versus
                     MAHENDRA V SHAH
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Appearance:
MR RD DAVE(264) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,4,5
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 1,3,6
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE J. C. DOSHI

                                Date : 03/07/2023

                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. Heard learned advocate Mr. R.D.Dave for the applicant.

2. Though rule is served by way of paper publication, none appears for the respondents. Seeking condonation of delay of 705 days occurred in filing First Appeal against judgment and decree dated 19.12.2018 passed by the Commercial Court at City Civil Court, Ahmedabad in Commercial Civil Suit No.166 of 2017 (Old Civil Suit No.878 of 2005), this application is preferred.

3. Learned advocate Mr. R.D.Dave for the applicant would submit that higher office of the petitioner - Corporation called for the papers as well as judgment and decree so as to decide whether the appeal is to be filed or not after judgment is

C/CA/1666/2022 ORDER DATED: 03/07/2023

delivered on 19.06.2018 and certified copy is obtained thereafter. He would further submit that entire nation was locked up due to deadly Corona and everything became still and nothing could move. He would further submit that this aspect has been taken cognizance by the Hon'ble Supreme Court in suo moto petition and excluded that period from limitation, if it is expired during Cornoa period. He would further submit that the appellant has meritorious case. He would further submit that before the Commercial Court, defendant has not countered averments of the plaintiff as well as defence adduced, yet Commercial Court without offering germane reasons in the judgment on technical grounds dismissed the suit. The appellant - plaintiff being Government undertaking has advanced huge sum of Rs.2 crores to the defendant and the amount was required to be recovered but for lack of certificate under section 65(B) of the Evidence Act, Commercial Court dismissed the suit. He would further submit that since the appellant has very good case on hand, if it is not allowed to prosecute this First Appeal, the appellant will loose on technical consideration. Upon such submission, he would submit that present petition be allowed.

4. On the other hand, the suit remained uncontested, none came forward to controvert the reasons stated by the applicant - plaintiff to brand them as stale or in-genuine.

5. In well celebrated judgment in the case of Collector, Land Acquisition, Anantnag and Anr. v/s. Mst. Katiji and Ors. [AIR 1987 SC 1353], it is observed by Hon'ble Supreme Court in para 3 as under :-

C/CA/1666/2022 ORDER DATED: 03/07/2023

"3. 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 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.

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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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a liti- gant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with

C/CA/1666/2022 ORDER DATED: 03/07/2023

the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

6. The expression "sufficient cause' indicated in section 5 should be read in juxtaposition of sub-serving substantial justice which can be considered as life purpose for existence of the institution of Courts.

7. Liberal approach for condoning delay should be consideration generally in condoning delay. By getting relief of condoning delay, the applicant is not getting anything except putting his case for consideration and to be decided on merits.

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The Court cannot be galvanized in matter of condonation of delay, until found delay to be of unjustifiable reasons. What stated by the petitioner in the petition, we find that delay is sufficiently explained and more particularly this grounds are not put to be challenged by other side.

8. For the reasons as above, though delay is long, it deserves to be condoned. Accordingly, delay of 705 days is condoned. Rule is made absolute.

(N.V.ANJARIA, J)

(J. C. DOSHI,J) SATISH