IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION No 1097 of 2000
For Approval and Signature:
Hon'ble MR.JUSTICE P.B.MAJMUDAR
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
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ABDULLA AHMED HAJI ISAM DADA
Versus
DIVISIONAL GENERAL MANAGER
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Appearance:
1. Civil Revision Application No. 1097 of 2000
MR YN RAVANI for Petitioner No. 1
NOTICE SERVED for Respondent No. 1
MR AJAY R MEHTA for Respondent No. 2
MR DHIRENDRA MEHTA for Respondent No. 3
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CORAM : MR.JUSTICE P.B.MAJMUDAR
Date of decision: 25/11/2002
ORAL JUDGEMENT
#. Rule. Mr.Ajay Mehta waives service of rule for
respondent nos.1 and 2 and Mr.Dhirendra Mehta waives
service of rule for respondent No.3. With the consent of
the parties, the matter is taken up for final hearing
today.
#. The petitioner has filed Regular Civil Appeal under
Section 96 of the Civil Procedure Code before the
District Court, Bharuch. In filing the said appeal,
there is a delay of about 5 months and few days. The
petitioner herein, submitted the application for
condonation of delay and the reason given in the said
application is that, since the mother of the petitioner
was not keeping good health, he was busy in looking after
his ailing mother and in the meanwhile, his sister also
came from foreign country to look after his ailing
mother. Under these circumstances, since the petitioner
was mentally disturbed, delay has occurred. The
Assistant Judge, Bharuch, however, came to the conclusion
that the petitioner has not produced any satisfactory
evidence to substantiate his case and even there is no
sufficient cause to condone the delay. Under these
circumstances, delay was not condoned and the appeal of
the petitioner is not heard for want of registration.
#. I have heard all the concerned advocates for the
parties.
#. In my view, the Appellate Court has not properly
considered the scope of Section 5 of the Limitation Act.
The Apex Court, in the case of Collector, Land
Acquisition, Anantnag and another Vs Mst.Katiji and
others, reported in AIR 1997 SC 1353, has laid down
certain principles for deciding the delay condone
applications. The Apex Court has held in para 3 as
under.:
“The legislature has conferred the power to
condone delay by enacting S.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 hierachy. 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 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.
Making a justice-oriented approach from this
perspective, there was sufficient cause for
condoning the delay in the institution of the
appeal. The fact that it was the ‘State’ which
was seeking condonation and not a private party
was altogether irrelevant. The doctrine of
equality before law demands that all litigants,
including the State as a litigant, are accorded
the same treatment and the law is administered in
an even-handed manner. There is no warrant for
according a stepmotherly treatment when the
‘State’ is the applicant praying for condonation
of delay. In fact experience shows that on
account of an impersonal machinery (no one in
charge of the matter is directly hit or hurt by
the judgment sought to be subjected to appeal)
and the inherited bureaucratic methodology imbued
with the note-making, file pushing, and
passing-on-the-buck ethos, delay on its part is
less difficult to approve. In any event, the
State which represents the collective cause of
the community, does not deserve a litigant non
grata status. The Courts therefore have to
inform with the spirit and philosophy of the
provision in the course of the interpretation of
the expression “sufficient cause”. So also the
same approach has to be evidenced in its
application to matters at hand with the end in
view to do even-handed justice on merits in
preference to the approach which scuttles a
decision on merits. Turning to the facts of the
matter giving rise to the present appeal, we are
satisfied that sufficient cause exists for the
delay. The order of the High Court dismissing
the appeal before it as time barred, is
therefore, set aside. Delay is condoned. And
the matter is remitted to the High Court. The
High Court will now dispose of the appeal on
merits after affording reasonable opportunity of
hearing to both the sides.”
In my view, the appellate Court should have condoned the
delay considering the averments made in the delay
condonation application and instead of rejecting the said
application, the appellate Court should have registered
the appeal filed by the petitioner. Under these
circumstances, the application of the petitioner is
allowed. Delay is condoned. Effect of this order is
that, now the Registry of the District Court will
register the appeal of the petitioner, and, thereafter,
the appellate Court shall decide the said appeal on its
own merits and in accordance with law. Mr.Dhirendra
Mehta states that, respondent No.3 may be awarded costs
in case the delay in filing the appeal is condoned. The
said request is reasonable. In the facts and
circumstances of the case, the petitioner is directed to
pay costs of Rs.500/- (Rupees five hundred only) to
respondent No.3. Such costs to be deposited before the
appellate Court within a period of one month from today.
The respondent No.3 will be entitled to withdraw the
aforesaid amount unconditionally.
#. In view of what is stated above, this revision
application is allowed. Rule is made absolute to the
extent indicated above with costs, as quantified above.
(P.B.Majmudar,J)
(pathan)