Rasiklal Amrutlal Kayasth vs Gordhanbhai Bhavanbhai Aahir
2024 Latest Caselaw 4678 Guj

Gujarat High Court

Rasiklal Amrutlal Kayasth vs Gordhanbhai Bhavanbhai Aahir on 13 June, 2024

Author: Gita Gopi

Bench: Gita Gopi

                                                                                           NEUTRAL CITATION




                              Modification of Order dtd.
     C/CA/2308/2024         06/05/2024 in R/CA/2308/2024ORDER DATED: 13/06/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2308 of
                              2024
                               In
           F/MISC. CIVIL APPLICATION NO. 8442 of 2024

     [On note for speaking to minutes of order dated 06/05/2024 in
                           R/CA/2308/2024 ]
==========================================================
                 RASIKLAL AMRUTLAL KAYASTH & ORS.
                              Versus
                GORDHANBHAI BHAVANBHAI AAHIR & ORS.
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 1,2,3
==========================================================
 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 13/06/2024

                                 ORAL ORDER

1. Heard Mr. Hiren Modi, learned advocate for the

applicants. Perused the note for speaking to

minutes.

2. Considering the averments made in the note for

speaking to minutes, Paragraph 7 of the order

dated 6.5.2024 is hereby substituted and read as

under:-

"7. Accordingly, the present application is allowed.

The office objection to be removed on or before 13.6.2024. Accordingly, the Misc. Civil Application stands

NEUTRAL CITATION

Modification of Order dtd.

C/CA/2308/2024 06/05/2024 in R/CA/2308/2024ORDER DATED: 13/06/2024

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disposed of. The First Appeal is ordered to be restored on the file."

3. Registry is directed to issue a fresh copy of the

aforesaid order dated 6.5.2024 containing the

above-mentioned corrections.

4. Accordingly, this note for speaking to minutes

stands disposed of.

(GITA GOPI,J) Maulik

NEUTRAL CITATION

Present Order is modified vide C/CA/2308/2024 Order dtd. 13/06/2024 in ORDER DATED: 06/05/2024 R/CA/2308/2024 undefined

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2308 of

In F/MISC. CIVIL APPLICATION NO. 8442 of 2024

========================================================== RASIKLAL AMRUTLAL KAYASTH & ORS.

Versus GORDHANBHAI BHAVANBHAI AAHIR & ORS. ========================================================== Appearance:

MR.HIREN M MODI(3732) for the Applicant(s) No. 1,2,3,4,5,6 for the Respondent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 06/05/2024

ORAL ORDER

1. Heard the learned advocate for the applicants.

2. By way of this application under Section 5 of the Limitation Act, 1963, the applicants have prayed for condonation of delay of 2404 days occurred in preferring the Misc. Civil Application for restoration.

3. Mr. Hiren M. Modi, learned advocate for the applicants submits that the matter was under office objection, for non-supply of certified copies. Mr.Modi, learned advocate states that all the objections were related to supply of certified copy which the applicants could not received in time. Mr. Modi, learned advocate submits that they were under bonafide impression that

NEUTRAL CITATION

Present Order is modified vide C/CA/2308/2024 Order dtd. 13/06/2024 in ORDER DATED: 06/05/2024 R/CA/2308/2024 undefined

the office objections have been removed but the matter came to be dismissed for non-prosecution on 12/07/2016.

Mr. Modi, learned advocate submits that the order did not provide opportunity to address the court and further because of bonafide belief of having supplied the certified copy, as an advocate for the applicants, was awaiting for the chance for the matter to come on board but after inquiry, recently it has come to the knowledge that the matter has dismissed and thus delay as aforesaid has been caused.

4. Since the dismissal for non-prosecution was on account of non-supply of certified copies and on the bonafide belief of the lawyer on record, there has been a delay for restoration of the matter since the matter was for removal of office objections and hence was filed within time impugning the judgment and award of the learned Tribunal.

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

NEUTRAL CITATION

Present Order is modified vide C/CA/2308/2024 Order dtd. 13/06/2024 in ORDER DATED: 06/05/2024 R/CA/2308/2024 undefined

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 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

NEUTRAL CITATION

Present Order is modified vide C/CA/2308/2024 Order dtd. 13/06/2024 in ORDER DATED: 06/05/2024 R/CA/2308/2024 undefined

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. 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 of 2404 days occurred in filing the Misc. Civil Application for restoration deserves to be condoned and is hereby condoned.

7. Accordingly, the present application is allowed.

The Misc. Civil Application for restoration is ordered to be restored on the file. The office objection to be removed on or before 13/06/2024 and the matter be listed on 13/06/2024.

(GITA GOPI,J) ILA