The National Insurance Co Ltd vs Amdabhai Tholiyo Rathwa
2023 Latest Caselaw 2640 Guj

      C/CA/364/2023                                    ORDER DATED: 29/03/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CIVIL APPLICATION NO. 364 of 2023

               In F/FIRST APPEAL NO. 14831 of 2021

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              THE NATIONAL INSURANCE CO LTD
                             Versus
                AMDABHAI THOLIYO RATHWA
======================================
Appearance:
MS LILU K BHAYA(1705) 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 : 29/03/2023

                                   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 1966 days caused in preferring the appeal.

2. The learned advocate for the applicant, relying upon a communication dated 12.08.2019 by the Advocate on Record, stated that the insurance company was instructed by the Advocate that the insurance company was exonerated from the liability and therefore, the insurance company had no responsibility at the relevant time to even pursue with the matter, however, when the certified copies were received and thereafter, the matter was pursued, it came to the knowledge of the officer concerned that the communication addressed by the Advocate was contrary to the judgment and hence, after necessary process and seeking opinion and sanction, appeal was

C/CA/364/2023 ORDER DATED: 29/03/2023

preferred and that led to delay in filing the first appeal.

3. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others, 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 meaningful 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 condoned 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 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

C/CA/364/2023 ORDER DATED: 29/03/2023

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."

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 caused in filing the first appeal deserves to be condoned and is hereby condoned.

5. The application is allowed accordingly.

[ Gita Gopi, J. ] hiren /3