Naynaben Bhaylalbhai Patel vs Manharbhai Ramanbhai Patel
2023 Latest Caselaw 2525 Guj

Citation : 2023 Latest Caselaw 2525 Guj
Judgement Date : 27 March, 2023

Gujarat High Court

Naynaben Bhaylalbhai Patel vs Manharbhai Ramanbhai Patel on 27 March, 2023

Bench: Sandeep N. Bhatt

     C/SCA/17241/2022                                ORDER DATED: 27/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17241 of 2022

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                        NAYNABEN BHAYLALBHAI PATEL
                                  Versus
                        MANHARBHAI RAMANBHAI PATEL
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Appearance:
MR. HARDEEP L MAHIDA(7112) for the Petitioner(s) No. 1,2,3
HARSHIT R PUROHIT(8385) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 27/03/2023

                               ORAL ORDER

1. The present petition is filed challenging the

order dated 30.6.2022 passed by the learned Principal

District Judge, Narmada at Rajpipla in Civil

Miscellaneous Application No.9 of 2021 below Exh.7, by

which the delay of 377 days caused in preferring the

appeal was not condoned.

2. Heard learned advocate Mr.Mahida for the

petitioners and learned advocate Mr.Purohit for the

respondent.

3. Learned advocate Mr.Mahida submitted that

the petitioner herein is the original defendant in Regular

C/SCA/17241/2022 ORDER DATED: 27/03/2023

Civil Suit No.141 of 2017, whereby the learned trial

Court has passed the judgment and decree on 16.1.2020

and being aggrieved by the same, the defendant filed

appeal on 25.2.2021 with an application for condonation

of delay of 377 days. He submits that the delay is

caused due to the outbreak of pandemic of covid-19

within a period of two months from the date of

judgment i.e. 16.1.2020 and the closure of courts for

certain period. He has drawn the attention of this Court

to the recent judgment of Hon'ble Apex Court and

submitted that the Hon'ble Apex Court has taken suo

motu cognizance of the same and vide order dated

10.1.2022 passed in Miscellaneous Application No.21 of

2022 in Miscellaneous Application No.665 of 2021 in Suo Motu Writ Petition (C) No.3 of 2020, has directed to

exclude the period from 15.3.2020 to 28.2.2022 for the

purpose of limitation. He, therefore, submitted that the

order of the learned lower appellate Court, wrongly

relying on the old judgments, is apparently erroneous. He

further submitted that the lower appellate Court has

taken a hypertechnical approach while considering the

application for condonation of delay, more particularly, in

the peculiar circumstances of pandemic. He, therefore,

C/SCA/17241/2022 ORDER DATED: 27/03/2023

prayed to allow this petition.

4. Per contra, learned advocate Mr.Purohit for the respondent submitted that the impugned judgment and

decree is passed on 16.1.2020 and 30 days appeal period

will be over in February, 2020, however, the present

petitioner has filed the appeal with delay condonation

application in February, 2021 and there is no cause,

much less sufficient cause, shown for the delay. He has

further submitted the Court has given cogent and

convincing reasons in paragraphs 5 and 6 of the

impugned order by dealing with the aspect that the

lockdown started from March, 2020 and thereafter in

July, 2020, the Courts started to work virtually and therefore the Court has believed that the reason stated

by the petitioner for the delay is not valid reason. He

therefore submitted that since the petitioner is not

vigilant in pursuing his remedy, the order of the learned

lower appellate court is just and proper and therefore

this petition be dismissed.

5. Considered the rival submissions and heard the

learned advocates for the parties. Though the judgment

C/SCA/17241/2022 ORDER DATED: 27/03/2023

and order is passed by the trial Court on 16.1.2020 and

the appeal is required to be filed within 30 days

thereafter, it happens that many times the petitioners

may have many constraints like money, not proper

advice by advocate etc. and could not adhere to the

period of limitation. The Apex Court in the case of

Collector, Land Acquisition, Anantnag and another V/s 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 unless there is gross negligence or unexplained

delay which may cause prejudice to the rights of the other parties.

6. Even considering the latest judgment of the

Apex Court in the case of suo motu proceedings

mentioned above, the period from 15.3.2020 to 28.2.2022

is to be excluded for the purpose of delay and therefore

also the learned lower appellate Court has committed

error in dismissing the delay condonation application.

C/SCA/17241/2022 ORDER DATED: 27/03/2023