Dy Collector And Special Land ... vs Patel Hirabhai Shivabhai(Since ...
2023 Latest Caselaw 5230 Guj

       C/CA/1994/2019                            ORDER DATED: 06/07/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/CIVIL APPLICATION NO. 1994 of 2019
                    In F/FIRST APPEAL NO. 17185 of 2019

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       DY COLLECTOR AND SPECIAL LAND ACQUISITION OFFICER
                             Versus
      PATEL HIRABHAI SHIVABHAI(since deceased through legla heirs)
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Appearance:
MR.H.K.PATEL, AGP for the Applicant(s) No. 1,2,3
DECEASED LITIGANT for the Respondent(s) No. 1
MR D V KANSARA(7498) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7
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  CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
        and
        HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                             Date : 06/07/2023

                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

[1] Present Civil Application has been filed seeking condonation of delay of 622 days occurred in filing First Appeal against the judgment and award dated 20.06.2016 passed by the learned Additional Senior Civil Judge, Lunawada in Land Acquisition Reference No.237 of 2010.

[2] Heard Mr. H. K. Patel, learned Assistant Government Pleader appearing for the applicants. Though matter is called out, even in the second round, Mr. D. V. Kansara, learned advocate appearing for the respondent has not remained present nor even any mention is made on his behalf.

       C/CA/1994/2019                                     ORDER DATED: 06/07/2023




[3]    Considered the averments made in the Civil Application and in

view of the submissions made by learned Assistant Government Pleader, we are of the opinion that the delay is sufficiently explained more particularly we have also considered the proposition of law laid down by Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another versus Mst. Katiji and others reported in AIR 1987 SC 1353 whereunder the Hon'ble Apex Court has defined the contours under which an application under Section 5 of the Limitation Act, 1963 is to be considered. It has been further held by the Hon'ble Apex Court:-

"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 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:-

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

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 condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

C/CA/1994/2019 ORDER DATED: 06/07/2023

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.

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 litigant, 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 machinery (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 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 merits 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."

       C/CA/1994/2019                               ORDER DATED: 06/07/2023




[4]    The cause shown in the present case as extracted hereinabove

being within the proximity of truth, we are of the considered view that delay deserves to be condoned. Accordingly, it is condoned.

The present Civil Application is allowed in terms of para 8(A).

(ASHUTOSH SHASTRI, J.)

(DIVYESH A. JOSHI, J.) DHARMENDRA KUMAR