Gujarat High Court
Legal Heirs Of Decd Rajput ... vs Jilabhai Kanabhai Udhareja on 24 March, 2023
Bench: Gita Gopi
C/CA/349/2023 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 349 of 2023
In F/FIRST APPEAL NO. 26649 of 2022
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LEGAL HEIRS OF DECD RAJPUT BHAVNABA DILIPSINH RAJPUT
DILIPSINH NATVARSINH
Versus
JILABHAI KANABHAI UDHAREJA
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Appearance:
MR AV PRAJAPATI(672) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/03/2023
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 66 days occurred in
preferring the appeal.
2. Learned advocate appearing for the applicant
submits that after the judgment and award passed
by the Tribunal, there was Covid-19 pandemic. Due
to financial crunch, the applicant could not approach
the advocate in time and further was unable to bear
C/CA/349/2023 ORDER DATED: 24/03/2023
the expenses, which had led to delay of 66 days
caused in filing the appeal.
3. 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"
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.
C/CA/349/2023 ORDER DATED: 24/03/2023
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
C/CA/349/2023 ORDER DATED: 24/03/2023
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."
C/CA/349/2023 ORDER DATED: 24/03/2023
4. 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 66 days occurred in
filing the appeal deserves to be condoned and is
hereby condoned.
5. Accordingly, the present application is allowed.
(GITA GOPI,J)
MANOJ
