Gujarat High Court
Paschim Gujarat Vij Company Limited vs Vajshibhai Polabhai Vadhiya on 1 April, 2025
NEUTRAL CITATION
C/SCA/21497/2023 ORDER DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21497 of 2023
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PASCHIM GUJARAT VIJ COMPANY LIMITED
Versus
VAJSHIBHAI POLABHAI VADHIYA
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/04/2025
ORAL ORDER
1. Heard Mr. Chinmay M.Gandhi, learned counsel
appearing for the petitioner. This Court vide its order dated
22.12.2024, passed the following order:
"Notice for final disposal returnable on 13.02.2024."
2. Despite service of notice upon the respondent, none
remained present. The present matter has been adjourned
from time to time to grant sufficient opportunity to
respondent, which appears to have not been availed and it
further appears that respondent has no say in the matter.
3. The present petition is filed under Article 227 of the
Constitution of India seeking following reliefs:
"a) This Hon'ble Court be pleased to admit and allow this
petition.
b) This Hon'ble Court be pleased to quash and set-aside the
impugned order dated 28.07.2023 passed by the learned
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C/SCA/21497/2023 ORDER DATED: 01/04/2025
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Additional District and Sessions Judge, Keshod in Civil Misc.
Application No.11/2023 (Annexure-G (colly.)), holding the same as
erroneous, illegal and contrary to the settled principles of natural
justice, in the interest of justice.
c) Pending admission, hearing and/or final disposal of this
petition, this Hon'ble Court may be pleased to stay the impugned
order dated 28.07.2023 passed by the learned Additional District
and Sessions Judge, Keshod in Civil Misc. Application No.11/2023
(Annexure-G (colly));
d) Such other and further relief as this Hon'ble Court may
deem just, fit and expedient be granted in favour of the petitioner.
e) The costs of this petition be provided to the petitioner."
4. Learned counsel Mr. Gandhi would submit that delay of
23 days in filing an appeal before the appellate Court has not
been condoned by the appellate Court on erroneous
observation that no sufficient cause made out and there is no
proper explanation given before the Court by the petitioner.
Learned counsel Mr. Gandhi would submit that petitioner
being a Public Sector Undertaking requires to follow
procedure before filing any litigation in the Court of law.
5. Learned counsel Mr. Gandhi would further submit that
there is a proper explanation given by the petitioner in
paragraph No.5 of its impugned delay application. Learned
counsel Mr. Gandhi would further submit that it is settled law
that a liberal approach requires to be taken by the Court
while considering delay application, wherein each day delay is
not required to be explained by the party.
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6. Learned counsel Mr. Gandhi would rely upon the
decision of this Court in the case of Paschim Gujarat Vij
Company Limited Amreli-rural Sub Division Vs.
Hirabhai Surabhai Mevada, reported in 2023 (1) GLR
403. Learned counsel Mr. Gandhi would submit that
considering the length of delay and the cause, which has been
disclosed by the petitioner, the appellate Court requires to
condone the delay. Making the above submissions, he is
requesting this Court to allow the present petition.
7. As stated hereinabove, though served, none appears for
the respondent. The short question, which arise for my
consideration is whether any error committed by the appellate
Court while passing the impugned order thereby, not
condoned the delay of 23 days in filing appeal by the
petitioner ?
8. After considering the submissions made by learned
counsel Mr. Gandhi and going through the impugned
application as well as impugned order, it appears that
appellate Court has taken a very hyper technical view and
instead of considering explanation so given by the petitioner,
who is a Public Sector Undertaking, erroneously observed
that no satisfactory explanation has been tendered by
petitioner. It has been well settled legal position of law that
Civil Court is not required to take a hyper technical view and
when there is negligence on the part of litigant in approaching
the Court of law, ordinarily, Court should lean towards
granting such delay application thereby, it can decide the
matter on merits.
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9. At this stage, it is profitable to refer to and rely upon the
decision of this Court so cited by learned counsel Mr. Gandhi
in the case of Hirabhai Surabhai Mevada (supra), wherein it
has been observed as under:
"7. Needless to state that the guidelines while considering the
applications for condonation of delay have been far too well
settled. In the case of Collector, Land Acquisition Officer Vs.
Mst. Katiji; 1987 (2) S.C.C. 107 : (AIR 1987 SC 1353), the
guidelines have been laid down as under :
"(1) Litigant does not stand benefitted by lodging an appeal late;
(2) Refusal to condone may result in meritorious matters being
thrown out at the very threshold and the cause of justice being
defeated;
(3) In the matter of explanation of every day's delay, pedantic
approach should be avoided. Rational common sense pragmatic
approach should be invariably adopted;
(4) Substantial justice is to be preferred against technical flaws;
(5) There is no presumption that delay is always deliberate;
(6) Injustice is to be removed."
8. Bearing in mind above principles if one examines the matter
in hand, though it is expected that the delay of each day is to be
explained, the courts are supposed to take a pragmatic view rather
than a pedantic one. It is expected that the rights are allowed to be
determined on merits rather than by default. The parties are
litigating for damages. The Petitioner is the Original Applicant in
the Suit. The reason explained by the Petitioner before the learned
Trial Court is that the application for obtaining the certified copy
of the judgment and order of the learned lower court was applied
by the Petitioner on 5.10.2019 and the same was provided on
18.10.2019. On receiving the same, the Petitioner has sent his
proposal to its higher officer on 22.10.2019 to file Civil Appeal
against the said judgment and order dated 26.9.2019 passed by the
learned Principal Senior Civil Judge, Amreli and the approval of the
same has been given vide letter dated 27.12.2019 i.e. after almost
two months.
9. True it is that the Law of Limitation has to be applied with
all its rigors. Even if the consequences are harsh it has to be
applied in an appropriate case even to non suit a person. However,
when in the matter in hand, there is sufficient reason
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demonstrated by the applicant the delay deserves to be condoned
by awarding some cost to the Petitioner / Original Applicant.
10. In view of the submissions made by the learned Advocate for
the Petitioner, in the opinion of this Court, the delay in preferring
the Appeal ought to have been allowed by the learned Trial Judge
in view of the various pronouncements by the Hon'ble Apex Court.
11. The present Petition therefore deserves to be allowed. The
order dated 17.8.2021 passed by the learned Principal District
Judge, Amreli in Civil Miscellaneous Application No. 5 of 2020 is
hereby quashed and set aside. Rule is made absolute."
10. Thus, considering the aforesaid facts and circumstances
of the case and according to this Court, a sufficient cause is
made out by the petitioner in its impugned application
thereby, impugned order requires to be quashed and set
aside, which is hereby quashed and set aside.
11. In view of the aforesaid, impugned application being
Civil Misc. Application No.11/2023 filed by the petitioner is
hereby allowed thereby, delay of 23 days in filing an appeal by
petitioner before the lower appellate Court is hereby
condoned. Now, in view of condoning the delay of 23 days in
filing an appeal, appellate Court is requested to register the
appeal and after giving an opportunity of hearing to all parties
concerned may decide the same in accordance with law at the
earliest.
12. With the aforesaid observations, discussions and
reasons, present application is hereby allowed. No orders as
to costs.
(MAULIK J.SHELAT,J)
Pankaj /92
