Gujarat High Court
Jayant Madhavji Gesota vs M/S Paradise Industrial ... on 24 March, 2023
Bench: Sandeep N. Bhatt
C/SCA/10/2021 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10 of 2021
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JAYANT MADHAVJI GESOTA
Versus
M/S PARADISE INDUSTRIAL CORPORATION
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2
DS AFF.NOT FILED (N) for the Respondent(s) No. 4,5,6,9
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 1,1.1
NOTICE SERVED BY DS for the Respondent(s) No. 3,7,8
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/03/2023
ORAL ORDER
1. The present petition is filed by the petitioner
being aggrieved and dissatisfied with the judgment and
th
order dated 20.3.2020 passed by the 4 Additional
Sessions Judge, Rajkot in CMA No.216 of 2019 filed by
the respondent no.1 herein seeking condonation of delay
of 146 days in preferring First Appeal against the
judgment and order dated 30.7.2019 passed by the
learned Principal Senior Civil Judge, Rajkot in SCS
No.153 of 1991.
2. Heard learned advocate Mr.Jasani for the
C/SCA/10/2021 ORDER DATED: 24/03/2023
petitioner and learned advocate Mr.Sheth for respondent
no.1 and 1.1.
3. Learned advocate Mr.Jasani for the petitioner
has submitted that the learned lower appellate Court has
grossly erred in not properly appreciating the provisions
of the Limitation Act and the averments made in the
application for condonation of delay filed by the present
respondent under Section 5 of the limitation Act. He has
further submitted that no sufficient cause is made out as
reasons assigned for cause of delay is not in accordance
with the provisions of law. He has further submitted
that the learned trial Court has not dealt with the
detailed objections filed against the application filed
under Section 5 of the delay condonation. He has further
submitted that even in the proceedings before the civil
court, the present respondent did not act in vigilant
manner and remained negligent during the proceedings.
He has further submitted that the application for
condonation of delay filed by the present respondent no.1
do not generate any confidence in the minds of a
prudent man and the averments made in the application
are false averments. He has further submitted that such
C/SCA/10/2021 ORDER DATED: 24/03/2023
application is nothing but an attempt by the respondent
to unnecessary drag the litigation by filing such
proceedings at belated stage. He has further submitted
that one of the partners who is looking after the
business registered partnership firm is not well and on
that ground, the application for condonation of delay was
filed but he has submitted that the partnership firm
consisted of many partners and any of the partner
should have proceeded further but it was not done and
therefore it cannot be said that the respondent remained
vigilant even then the learned trial court has not
considered all these aspects and passed the impugned
order which is erroneous and therefore requires
interference by exercising powers under in this petition.
4. Per contra, learned advocate Mr.Sheth
appearing for the respondent has submitted that the
learned trial Court has not committed any error and on
the contrary, the judgment delivered by the learned trial
Court has considered all the relevant aspects for
consideration of condonation of delay under Section 5 of
the Limitation Act. He has also submitted that the
averments made in the application by the respondent
C/SCA/10/2021 ORDER DATED: 24/03/2023
no.1 for condonation of delay has put forward the factual
position and any prudent man can presume that the
person who is in charge of the affairs normally looking
after is not well and normally who is looking after the
matters regarding the court proceedings pursues the
matter and other partners may not have any knowledge
about the said aspect and therefore the learned trial
Court has rightly considered all these aspects in its
judgment and order and has given cogent and convincing
reasons by holding that there is sufficient cause made
out for condonation of delay and therefore no interference
is required in the present petition.
5. I have considered the rival submissions and
also considered the material placed on record and also
perused the impugned order. From the same, it is
evident that the respondent no.1 has filed the application
for condonation of delay on the ground that the partner
is not well and was remaining sick for long period and
medical papers in support of the same is produced at
mark 3/3. It also transpires that the learned trial Court
has also considered the relevant aspects while considering
the application under Section 5 of the Limitation Act,
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more particularly the fact that there is sufficient cause
made out and the parties do not have any reason to
adopt any dilatory techniques but it seems a genuine
cause for the delay. The learned trial Court has also
considered that any meritorious proceedings should not
be thrown out on technical grounds and learned trial
Court has relied on the judgment in the case of Ummer
V/s Pottengal Subida reported in 2018(0) AIJEH HC
61891 of the Apex Court, where it is held that the
Court has to take liberal view in matter for condonation
of delay and held that the appellant has shown sufficient
cause within the meaning of Section 5 of the Limitation
Act. The learned trial Court has also considered the
judgment in the case of Virendra Gulabchand Patva V/s
Ashaben Vinodbhai Desai reported in 2018(0) AIJEL HC
239285, the Apex Court has held that when the
substantial justice and technical consideration such as
delay are pitted against each other, substantial justice
should reign.
6. In view of the above and even otherwise also,
in view of the settled principle laid down in the case of
Collector, Land Acquisition, Anantnag and another V/s
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Mst.Katiji and Others reported in AIR 1987 SC 1353 has
held that the Court should not take pedantic approach
in the matter and not take high technical approach on
the condonation of delay and the parties should be given
reasonable opportunity to proceed with the matter on
merits and therefore I am of the opinion that there is
no error committed by the learned trial Court in
condoning the delay and there is no reason to interfere
with the same.
7. In view of the above, this petition requires to
be dismissed and accordingly dismissed. Notice is
discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J)
SRILATHA
