Pravinkumar Fulchand Odd vs Lavjibhai Kacharabhai Patel
2023 Latest Caselaw 2433 Guj

     C/CA/99/2021                                   ORDER DATED: 21/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CIVIL APPLICATION NO. 99 of 2021

                    In F/FIRST APPEAL NO. 27304 of 2020

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                      PRAVINKUMAR FULCHAND ODD
                                  Versus
                      LAVJIBHAI KACHARABHAI PATEL
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Appearance:
MANAN V PATEL(8059) for the Applicant(s) No. 1
MR KRISHNARAJSINH D CHAUHAN(10648) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 21/03/2023

                                ORAL ORDER

1. By way of this application under Section 5

of the Limitation Act, 1963, the applicant has prayed for condonation of delay of 876 days occurred in

preferring the appeal.

2. Upon perusal of the report of Principal

District & Sessions Judge, Arvalli, Modasa, it

appears that process has been served upon both the

respondents.

3. Though served, none appears for the

C/CA/99/2021 ORDER DATED: 21/03/2023

opponents.

4. Learned advocate appearing for the

applicant submits that there is a delay of 876 days

in filing the appeal as the applicant is a driver and

owner of the Truck, and only after the service of

notice and execution petition, he came to know about

the judgment and award. Thereafter arranging the

funds for engaging an Advocate, which had led to

delay of 876 days caused in filing the appeal.

5. 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"

C/CA/99/2021 ORDER DATED: 21/03/2023

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

C/CA/99/2021 ORDER DATED: 21/03/2023

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 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.

C/CA/99/2021 ORDER DATED: 21/03/2023

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."

6. 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 876 days occurred in

filing the appeal deserves to be condoned and is

hereby condoned.

7. Accordingly, the present application is

allowed.

8. First Appeal No.27306 of 2020 to be tagged

with the present First Appeal No.27304 of 2020.

(GITA GOPI,J) MANOJ