Gujarat High Court
Jai Hind And Co. - A Partnership Firm vs Kanjibhai Vondas Patel on 13 June, 2024
NEUTRAL CITATION
C/SCA/5560/2017 ORDER DATED: 13/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5560 of 2017
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JAI HIND AND CO. - A PARTNERSHIP FIRM & ORS.
Versus
KANJIBHAI VONDAS PATEL & ORS.
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Appearance:
MR BJ TRIVEDI(921) for the Petitioner(s) No. 1,2,3,4
MR.DEVENDRA H PANDYA(6462) for the Petitioner(s) No. 1,2,3,4
MS JIGNASA B TRIVEDI(3090) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1
ABHISHEK Y SHAH(9480) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/06/2024
ORAL ORDER
Heard learned advocate for both the sides.
2. By way of this petition under Article 227 of the
Constitution of India, the petitioner challenges the order dated
03/01/2017 passed in CMA No.474 of 2023 by the learned City
Civil Court, Ahmedabad whereby the petition filed under Section
5 of the Limitation Act seeking condonation of delay of 135 days
caused in preferring the restoration application has been
rejected.
3. Learned advocate for the petitioner Mr.Trivedi would
submit that trial Court has taken hyper-technical view to deny
the relief seeking condonation of delay. He would submit that
delay was not superficial or gross or mala-fide. Learned advocate
for the petitioner referred to paragraph 7 to 12 of the application
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to submit that the delay was sufficiently explained. He would
further submit that by granting the delay the Court at the most
would permit the petitioner to litigate his cause on merits and
therefore he would submit that present petition may be allowed.
4. Learned Advocate for respondent Mr.Shah has vehemently
objected to any grant of relief claimed in the petition with the
contention that no specific reasons are supplied by the petitioner
for explaining the delay. He would submit that reasons which
are stated in the petition are superficial and learned advocate for
the petitioner was well aware of passing of ex-parte decree as he
has signed thereon. He would submit that it is the petitioner who
remained in slumber for not moving the necessary petition
within the time limit prescribed and therefore, this Court may
not exercise the discretion in favour of the petitioner. He would
submit that petitioner has not produced any documentary
evidence to substantiate the cause stated in the petition and in
view of that learned trial Court has rightly rejected the
application and this court may not interfere with the same.
5. Having heard the learned advocate for both the sides, at
the outset, it is to be observed that condonation of delay is a
matter of discretion of the Court and the Court is required to
take pragmatic approach rather taking the technical aspect and
to allow the party to decide the matter on merits. Section 5 of the
Limitation Act prescribes that discretion should be exercised
only if the delay is of certain time limits. Length of the delay is
not matter; but acceptability of the explanation is the only
criterion. Short delay without any explanation cannot be
condoned; but delay of very long range can be condoned as the
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C/SCA/5560/2017 ORDER DATED: 13/06/2024
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explanation thereof is satisfactory. At the same time, the primary
function of a court is to adjudicate the issue between the parties
and to advance substantial justice unless the impugned order is
passed wholly on untenable and unsustainable grounds. To be
noted that, rules of limitation are not meant to destroy the right
of the parties. The object of providing a legal remedy is to repair
the damage caused by reason of legal injury. Law of limitation
fixes a life span for such legal remedy for the redress of the legal
injury so suffered. It is true that time is precocious and the
wasted time would never revisit.
6. At this juncture, I may refer to the decision of Hon'ble Apex
Court in case of Collector, Land Acquisition, Anantnag and Anr.
Vs. Msr. Katji and Ors. reported in AIR 1987 SC 1353 , wherein
the Hon'ble Apex Court has observed as under:-
"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 must be applied in
a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are
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C/SCA/5560/2017 ORDER DATED: 13/06/2024
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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."
7. In the present case, delay of 135 days is caused in
preferring the restoration application which is not a gross delay
and no mala-fide can be attributed to the petitioner for not filing
the application within the prescribed time limit. The only anxiety
on the part of the defendant that learned advocate for the
petitioner has signed the ex-parte decree and therefore petitioner
was aware of passing of the judgment and decree can be taken
care during the course of proceeding of restoration application
which is yet to be decided. The learned trial Court has taken
more technical consideration rather than allowing the party to
contest the issue on merits. Delay of 135 days is not
substantially gross delay and therefore under supervisory
jurisdiction this Court requires to interfere with the impugned
order.
8. For the foregoing reasons, the petition is allowed.
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C/SCA/5560/2017 ORDER DATED: 13/06/2024
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Impugned order is set aside. Delay of 135 days caused in
restoration application is allowed. The learned trial Court is
directed to register the restoration application.
Direct Service is permitted.
(J. C. DOSHI,J)
sompura
