Gujarat High Court
Koli Narubhai Karshanbhai vs Legal Heirs Of Bharvad Karsanbhai ... on 10 November, 2023
Bench: Gita Gopi
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C/CA/1423/2023 ORDER DATED: 10/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1423 of
2023
In
F/SECOND APPEAL NO. 28617 of 2023
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KOLI NARUBHAI KARSHANBHAI
Versus
LEGAL HEIRS OF BHARVAD KARSANBHAI DHANABHAI
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Appearance:
MR NIKHILESH J SHAH(3007) for the Applicant(s) No. 1,2
for the Respondent(s) No. 1
MR AAKASH GUPTA, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 3
MR HRIDAY BUCH(2372) for the Respondent(s) No. 1.1,1.2
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/11/2023
ORAL ORDER
1. Heard the learned advocates appearing for the
respective parties.
2. By way of this application under Section 5 of
the Limitation Act, 1963, the applicants have
prayed for condonation of delay of 724 days
occurred in preferring the appeal.
3. Mr. Shah states that there is delay of 724
days in preferring the Second Appeal. Mr. Shah
states that the applicants were facing
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financial crunch to speed up the process of
legal remedies and only after a period of
time, he could take the service of High Court
Legal Services Committee and during that
course, he has received the execution petition
where the applicant had filed his objection.
Mr. Shah submits that during pandemic Covid-
19, because of modalities, movements were
restricted and thus, that had added to delay.
Advocate Mr. Shah submits that the applicants
were vigilant to file the objections during
the execution petition and hence, it cannot be
said that there is any negligence on his part
to avoid legal course. However, the monetary
disability has restrained him to get legal
advise in time. Mr. Shah has relied upon the
decisions in the case of Collector, Land
Acquisition, Anantnag and Another v. Mst.
Katiji and Others reported in AIR 1987 SC 1353
and State of Punjab v. Shamlal Murari reported
in 1975 LawSuit (SC) 382.
4. Mr. Buch relying upon the affidavit of the
opponents submits that the judgment was
declared on 10.7.2019 by the learned 6th
Additional District Judge, Bhavnagar in
Regular Civil Appeal no.8 of 2007 and thus,
from the date of the judgment, in the appeal,
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if the period is to be counted, then the delay
would come to about 4 years. Mr. Buch submits
that though each day delay is not required to
be explained but sufficient cause acceptable
and bonafide should be produced so that the
confidence of the litigants in the system
would maintain as the opponents have order in
favour. The opponents after having the benefit
of the judgment cannot take the fruits because
of the lethargic approach of the other side.
Mr. Buch submits that ignorance of law or
illiteracy cannot be made a ground to provide
privilege to the rash and negligent approach
of the applicants.
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" 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
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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
preferred for the other side cannot
claim to have vested right in
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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."
6. It is required to be noted that the matter
between the parties is regarding the right of
way where there is an issue regarding
construction on the public road, while Regular
Civil Suit no.112 of 1999 was rejected where
the judgment and order was in favour of the
present applicant. When there are contrary
observations on record, the matter requires
decision on merits. The delay would be
considered as inordinate. The other side if
compensated in terms of money, then the legal
injury as caused because of the delay could be
redressed. However, considering the fact that
the applicants had been suffering from the
financial crunch and the matter has been filed
through the Legal Service Authority, this
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Court has restrained from passing any such
order, but the litigants are required to be
reminded that every litigation has its own
time period where the rights of the parties
get ripe with passage of time in accordance to
the limitation provided by the Act. Delays are
condoned with the discretionary relief but the
parties should always remember that the delays
are condoned is a gracious act which at the
same time prejudice the valuable right of the
other side as after the expiry of the
limitation, rights become absolute. However,
considering the fact that both the parties
would have sufficient opportunity to deal with
the case on merits, the delay of 724 days
occurred in filing the appeal deserves to be
condoned and is hereby condoned.
7. Accordingly, the present application is
allowed. Registry is directed to list Civil
Application no.2/2023 in F/Second Appeal
no.28617/2023 on 20.12.2023 for hearing.
(GITA GOPI,J)
Maulik
