Laxmiba Wd/O Jalamsinh Mansing ... vs Dilusinh Rajitsinh Jadeja
2023 Latest Caselaw 6985 Guj

                                                                              NEUTRAL CITATION




      C/CA/1262/2023                           ORDER DATED: 21/09/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CIVIL APPLICATION NO. 1262 of 2023

      In F/MISC. CIVIL APPLICATION NO. 26366 of 2023

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       LAXMIBA WD/O JALAMSINH MANSING JADEJA
                              Versus
                DILUSINH RAJITSINH JADEJA
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Appearance:
MR R.K.MANSURI(3205) for the Applicant(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                         Date : 21/09/2023

                          ORAL ORDER

1. By way of this application under Section 5 of the Limitation Act, 1963, the applicants have prayed for condonation of delay of 127 days caused in preferring the restoration application.

2. The learned advocate for the applicants submits that the applicants had moved the appeal challenging the judgment and award of the Tribunal, however, the same came to be dismissed for default, for want of prosecution, on account of non-removal of office objections, without having been given an opportunity to explain the cause and upon coming to know about such dismissal, the applicants

NEUTRAL CITATION

C/CA/1262/2023 ORDER DATED: 21/09/2023

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took the steps and filed the restoration application, however, the applicants being widow and the children of the deceased and since did not know the nitty-gritty of law, there is a delay in filing the restoration application.

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.

NEUTRAL CITATION

C/CA/1262/2023 ORDER DATED: 21/09/2023

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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 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 applicants 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, the delay caused in filing the restoration application for the first appeal deserves to be condoned and is hereby condoned. The application is allowed accordingly.

[ Gita Gopi, J. ] hiren /25