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CA/6803/2011 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 6803 of 2011
In
SECOND
APPEAL (STAMP NUMBER) No. 58 of 2011
For
Approval and Signature:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
STATE
OF GUJARAT THROUGH CHIEF SECRETARY & 1 - Petitioner(s)
Versus
A.
H. GOHEL - Respondent(s)
======================================
Appearance:
MS
C.M.SHAH ASSISTANT GOVERNMENT
PLEADER for Petitioner(s) : 1 - 2.
MR DEEP D VYAS for
Respondent(s) : 1,
======================================
CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
Date:
09/08/2011
ORAL
JUDGMENT
By
this application, the applicant State of Gujarat seeks condonation
of delay of 64 days that has occurred in preferring the Second
Appeal (Stamp) No.58 of 2011.
Ms.
C. M. Shah, learned Assistant Government Pleader, appearing on
behalf of the appellant referred to the averments made in the
memorandum of the application to submit that the delay has been duly
explained and sufficient cause has been made out for condoning the
delay. In the circumstances, the application deserves to be allowed
by condoning the delay.
On
the other hand, opposing the application, Mr. Deep D. Vyas, learned
advocate for the respondent submitted that all that is stated in the
memorandum of the application is as to how the file moved from table
to table. It was submitted that on a perusal of the averments made
in the application it is apparent that the applicants have not
thought it fit to apply for the certified copy of the judgment till
as late as on 15th
February, 2011. It was submitted that merely because the applicant
is a State Government, it is not that in every case the delay has to
be condoned and that the applicants having failed to sufficiently
explain the delay that has occasioned in filing the second appeal,
the delay does not deserve to be condoned. In support of his
submission, the learned advocate placed reliance upon the
decision of the Supreme Court in the case of Lanka
Venkateshwarlu (D) by L.Rs. V/s. State of A.P. & Ors.,
AIR 2011 SC 1199,
for the
proposition that the concepts such as “liberal approach”,
“justice-oriented approach”, “substantial justice”
cannot be employed to jettison the substantial law of limitation. It
was submitted that in the facts and circumstances of the case, the
respondents having failed to satisfactorily explain the delay that
had occasioned in filing the second appeal, there is no reason for
the Court to adopt a liberal approach and condone the delay. It was
submitted that the application, therefore, deserves to be rejected.
A
perusal of the averments made in the memorandum of the application
indicates that the judgment and decree passed by the learned
Additional District Judge, Porbandar, in Regular Civil Appeal No.20
of 2006 came to be pronounced on 30th
October, 2010. Thereafter, the District Government Pleader vide
letter dated 13th
December, 2010 forwarded his opinion to the Deputy Secretary, Legal
Department recommending that an appeal be preferred in the matter.
On 1st
January, 2011, the Legal Department instructed the Deputy Secretary,
Health and Family Welfare Department to forward a report under Rules
54 and 55 of the Law Officers Rules. The said letter of the Legal
Department came to be received in the branch dated 13.1.2011. On
15.1.2011 the letter of the Legal Department came to be entered in
the Register and on 18.1.2011, the Deputy Section Officer prepared a
note for obtaining sanction from the Legal Department for preferring
an appeal in the matter as
opined by the District Government Pleader. On 24th
January, 2011, the Section Officer put up a note to the Under
Secretary who on 27th
January, 2011 submitted the file to the Law Officer of the
Department, who thereafter, submitted the file to the Joint
Secretary, who in turn, placed the file before the Principal
Secretary. On 28th
January, 2011, the Principal Secretary forwarded the file to the
Secretary, Legal Department for according the sanction for filing an
appeal in the matter and on 10.2.2011, the Legal Department, by
passing a Government Resolution in this regard, took a decision to
file an appeal. On 14.2.2011 Government Pleader’s Office received
the Government Resolution instructing the Government Pleader to file
an appeal in the matter. However, the same was not accompanied by a
certified copy of the judgment and decree. The Office of the
Government Pleader, therefore, addressed a telegram dated 15.2.2011
to the concerned department for sending the certified copy of the
judgment and decree. It appears that thereafter the certified copy
of the judgment and decree came to be applied for on 21.2.2011,
which came to be delivered on 23.2.2011 and was received by the
Office of the Government Pleader, High Court on 1st
March, 2011. It appears that thereafter, some time was consumed in
drafting the memorandum of appeal and the second appeal ultimately
came to be filed on 2nd
April, 2011.
In
the light of the facts noted herein above, it is apparent that no
sooner than the opinion of the Government Pleader was received by
the Legal Department, steps have
been taken for filing the appeal. From the averments made in the
application, it cannot be said that there was any deliberate
negligence on the part of the applicants or that the applicants had
at any point of time given up the cause. In the circumstances, in
the opinion of this Court, sufficient cause has been made out for
filing the appeal beyond the prescribed period of limitation. The
decision of the Supreme Court in the case of Lanka
Venkateswarlu
(supra) on which reliance has been placed by the learned advocate
for the respondent does not in any manner support the case of the
respondent inasmuch as in the facts of the said case, there was a
gross delay in filing the appeal and the High Court while condoning
the delay had observed that in the normal case the High Court would
have thrown out the application without having a second thought in
the matter. It was in the peculiar facts of the said case that the
Supreme Court observed that it was at a loss to fathom any logic or
rationale, which could have impelled the High Court to condone the
delay after holding the same to be unjustifiable. The facts of the
present case stand on totally different footing from the facts of
the said case.
As
noticed hereinabove, the delay of 64 days in filing the second
appeal has been satisfactorily explained by the applicants. In the
circumstances, the application is allowed. The delay of 64 days that
has occurred in filing Second Appeal (Stamp) No.57 of 2011 is hereby
condoned. Rule is made absolute accordingly with no order as to
costs.
Registry
is directed to give regular number to the second appeal and list the
same for hearing on 18th
August, 2011.
(HARSHA
DEVANI, J.)
(ashish)
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