{"id":172712,"date":"2011-04-28T00:00:00","date_gmt":"2011-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/govindbhai-vs-priyanka-on-28-april-2011"},"modified":"2019-02-14T13:55:36","modified_gmt":"2019-02-14T08:25:36","slug":"govindbhai-vs-priyanka-on-28-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/govindbhai-vs-priyanka-on-28-april-2011","title":{"rendered":"Govindbhai vs Priyanka on 28 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Govindbhai vs Priyanka on 28 April, 2011<\/div>\n
Author: K.M.Thaker,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCA\/15\/2011\t 8\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION - FOR CONDONATION OF DELAY No. 15 of 2011\n \n\nIn\n\n\n \n\nMISC.CIVIL\nAPPLICATION (STAMP NUMBER) No. 3268 of 2010\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5699 of 1999\n \n\n \nFor\nApproval and Signature:  \nHONOURABLE\nMR.JUSTICE K.M.THAKER\n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nGOVINDBHAI\nBHAVSING JHALA & 7 - Petitioner(s)\n \n\nVersus\n \n\nPRIYANKA\nFIBERS & FILAMENTS PVT LTD & ANR & 11 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nGM JOSHI for\nPetitioner(s) : 1 - 8. \nMR DAXESH T DAVE for Respondent(s) : 1, \nMR\nRAJESH B DESAI for Respondent(s) : 1, \nRULE SERVED BY DS for\nRespondent(s) : 2 - 10. \nDS AFF.NOT FILED (R) for Respondent(s) :\n11, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\nDate\n: 28\/04\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tPresent
\napplication is taken out with a request to condone delay of 673 days
\ncaused in preferring Misc. Civil Application seeking review of order
\ndated 22.01.2009.\n<\/p>\n
2.\tThe
\nsaid order dated 22.01.2009 has been passed in Special Civil
\napplication No.5699 of 1999. By the said order, the said petition was
\npartly allowed. The said order was essentially passed in view of the
\ndeclaration and stipulation made by Mr.Joshi, learned advocate for
\nthe petitioners. It is, now, claimed (in the accompanying application
\nseeking review) by the applicant that :-\n<\/p>\n
“1.\tThe
\napplicants are the original respondents of SCA No.5699 of 1999 that
\nwas decided by the Hon’ble Court by judgement and order date 22nd
\nJanuary 2009. By the said judgement and order, the Hon’ble Court had
\nparty allowed the petition and directed the petitioner company to
\nmake the payment of wages to the Resp.No.1 i.e. Govindbhai Bhavsing
\nJala for the period between 15th December 1995 and 3rd
\nAugust 1996 and also to pay retiral dues to the said respondents. The
\nrelief against the other workmen was granted mainly on the ground
\nthat they have not entered their appearance in the proceedings. A
\ncopy of the judgement and order passed by the Hon’ble Court is
\nproduced herewith and marked as Annexure-A to this application.\n<\/p>\n
2.\tThe
\napplicants state that they were of the bonafide belief that the
\ndispute was a representative dispute sponsored by the union and was a
\ncollective dispute, therefore, did not file their appearance. In view
\nof the fact that the original petitioner company was closed down,
\nthey had lost their hope and were not pursuing th mater as it would
\nalso involved financial implications They were bonafide of the
\nimpression that the matter was over for all practical purposes and
\nwere engaged in other employments. However, the union pointed out
\nthat they there was no contest, they were not paid their legitimate
\ndues and therefore the union addressed a letter on 3rd May
\n2009 to the original petitioner company calling upon them to make
\navailable the details of any amount paid to the applicants, a copy of
\nthe letter is produced herewith as Annexure-B to this application. No
\nresponse is received by the union till date.\n<\/p>\n
3.\tThe
\napplicants state that the applicants were similarly situated as those
\nemployees who had settled with the respondent company during the
\npendency of the proceedings and they are also entitled to and willing
\nto accept the same benefits as were paid to some of the respondents
\nby the original petitioner company, a copy of one such settlement is
\nproduced herewith and marked as Annexure-C.”\n<\/p>\n
3.\tThe
\nsaid averments and statements are made by the applicants in the
\naccompanying MCA whereby the applicants seek review of the order
\ndated 22.01.2009. On the grounds and for the reasons stated in the
\napplication. The applicants also seek condonation of delay of 673
\ndays caused in filing the said application.  In addition to the
\naforesaid statements and averments made in the application seeking
\nreview of the order, in present application (seeking condonation of
\ndelay), the applicants have stated that:-\n<\/p>\n
“2.\tThe
\napplicants state that there is a considerable delay in preferring the
\napplication. The reasons are that the applicants were working as
\nlowest paid workmen in the original petitioner company which had
\nclosed down its affairs and the workmen were scattered at various
\nplaces having no single place of a meeting except visiting the union
\noffice from time to time. The dispute was old and the matter was
\npending before the Hon’ble High Court for 10 years. Therefore, the
\napplicants who were engaged in small time jobs for meeting their two
\nends meet could not pursue the matter with the union in time.
\nHowever, in the month of April 2009, they had approached the union
\nwhen they were informed about the disposal of the petition. The union
\naccordingly addressed a letter to the respondents, but there was no
\nresponse to the same. The applicants also approached the original
\npetitioner company ‘s owner, but they did not get any response,
\ntherefore they had no option but to approach their advocates through
\nthe union for seeking the filing of present review application. The
\nprocess has taken considerably long time but the same is bonafide and
\nin the interest of justice the delay may be condoned by this Hon’ble
\nCourt taking into consideration the peculiar circumstances and facts
\nof the case.”\n<\/p>\n
4.\tAccordingly,
\nthe applicants have tried to explain delay. The request-application
\nis opposed by the respondent-Company i.e. the employer. It is claimed
\nthat the each days has not been properly explained.\n<\/p>\n
5.\tIn
\nthis context, a reference may be made to the judgment of the Hon’ble
\nApex Court in the case between N. Balakrishnan and M.
\nKrishnamurthy, reported in 1998 (7) SCC 123,
\nwherein the Hon’ble Apex Court has observed in para nos.9 and 11 to
\n12 as under:-\n<\/p>\n
“9.\tIt
\nis axiomatic that condonation of delay is a matter of discretion of
\nthe Court.   Section 5 of the Limitation Act does not say that such
\ndiscretion can be exercised only if the delay is within a certain
\nlimit.  Length of delay is no matter, acceptability of the
\nexplanation is the only criterion.  Sometimes delay of the shortest
\nrange may be uncondonable due to want of acceptable explanation
\nwhereas in certain other cases delay of very long range can be
\ncondoned as the explanation thereof is satisfactory.  Once the Court
\naccepts the explanation as sufficient it is the result of positive
\nexercise of discretion and normally the superior Court should not
\ndisturb such finding, much less in revisional jurisdiction, unless
\nthe exercise of discretion was on wholly untenable grounds or
\narbitrary or perverse.  But it is a different matter when the first
\nCourt refused to condone the delay.  In such cases, the superior
\ncourt would be free to consider the cause shown for the delay afresh
\nand it is open to such superior Court to come to its own finding even
\nuntrammeled by the conclusion of the lower Court.\n<\/p>\n
11.\tRules
\nof limitation are not meant to destroy the right of parties.  They
\nare meant to see that parties do not resort to dilatory tactics, but
\nseek their remedy promptly.  The object of providing a legal remedy
\nis to repair the damage caused by reason of legal injury.  Low o
\nlimitation fixes a life span for such legal remedy for the redress of
\nthe legal injury so suffered.  Time is precious and the wasted time
\nwould never revisit.  During efflux of time newer causes would sprout
\nup necessitating newer persons to seek legal remedy by approaching
\nthe courts.  So a life span must be fixed for each remedy.  Unending
\nperiod for launching the remedy may lead to unending uncertainty and
\nconsequential anarchy.  Low of limitation is thus founded on public
\npolicy.  It is enshrined in the maxim Interest reipublicae up sit
\nfinis litium (it is for the general welfare that a period be put to
\nlitigation).  Rules of limitation are not meant to destroy the right
\nof the parties.  They are meant to see that parties do not resort to
\ndilatory tactics but seek their remedy promptly.  The idea is that
\nevery legal remedy must be kept alive for a legislatively fixed
\nperiod of time.\n<\/p>\n
12.\tA
\ncourt knows that refusal to  condone delay  would result foreclosing
\na\tsuitor from putting forth his cause.  There is no presumption that
\ndelay in approaching the  court is  always  deliberate.  This Court
\nhas held that the words “sufficient cause” under Section 5
\nof the Limitation Act should receive a liberal construction so  as to
\nadvance substantial justice vide Shakuntala  Devi  Jain Vs.  Kuntal
\nKumari\t[AIR 1969 SC 575] and State of West Bengal Vs. The
\nAdministrator, Howrah Municipality [AIR 1972 SC 749].”\n<\/p>\n
6.\tEarlier,
\nin case of Collector, Land Acquisition, Anantnag & Anr. V\/s.
\nMst. Katiji & Ors. reported in AIR 1987 SC 1353 the
\nHon’ble Supreme Court has observed as under :-\n<\/p>\n
“To
\ncondone, or not to condone, is not the only question. Whether or not
\nto apply the same standard  in applying  the “sufficient cause”
\ntest to all  the  litigants regardless  of their  personality in the
\nsaid  context  is another.\n<\/p>\n
3.\tThe
\nlegislature has conferred the power to condone delay by enacting
\nSection 51 of the Indian Limitation Act of 1963 in  order to enable
\nthe Courts to do substantial justice  to parties by disposing of
\nmatters on ‘merits’. The  expression “sufficient cause”
\nemployed by the legislature is adequately elastic to enable the
\ncourts to apply the law in a  meaningful  manner which subserves the
\nends of justice–that  being the  life-purpose  for the existence of
\nthe  institution  of Courts.  It is common knowledge that this  Court
\nhas\tbeen making a justifiably liberal approach in matters  instituted
\nin  this  Court.  But the message does not  appear  to have
\npercolated  down to all the other Courts in  the  hierarchy. And such
\na liberal approach is adopted on principle as it is realized that:-
\n“Any  appeal or any application, other than an  application
\nunder  any  of the provisions of Order XXI of  the  Code  of Civil
\nProcedure, 1908. may be admitted after the  prescribed period if the
\nappellant or the applicant satisfies the court that  he had
\nsufficient cause for not preferring the  appeal or making the
\napplication within such period.” 389  1.  Ordinarily a litigant
\ndoes not  stand to benefit by lodging an appeal late.  2.  Refusing
\nto condone delay can  result in a meritorious matter being thrown
\nout  at    the very threshold and cause of justice  being   defeated.
\nAs against this when delay is\tcondoned the highest that can happen is
\n that  a   cause would be decided on merits after hearing   the
\nparties.  3. “Every day’s delay must be  explained” does
\nnot mean that a pedantic approach  should  be  made.  Why not every
\nhour’s  delay,  every     second’s delay? The doctrine   must  be
\napplied in a rational  common  sense pragmatic manner.\n<\/p>\n
5.\tThere
\nis no presumption that  delay is  occasioned deliberately, or on
\naccount of  culpable negligence,  or on account  of malafides. A
\nlitigant does not stand to benefit by resorting to delay. In fact he
\nruns a  serious risk.\n<\/p>\n
6.
\nIt must be grasped that judiciary  is  respected not  on  account of
\nits power to legalize injustice on technical grounds but because it
\nis capable of  removing  injustice  and is expected to do so. Making
\na justice-oriented approach from  this perspective, there was
\nsufficient cause for condoning the delay  in the institution of the
\nappeal. The fact that it was the  ‘State’ which  was seeking
\ncondonation and not a private  party was altogether irrelevant. The
\ndoctrine of equality before  law demands  that all litigants,
\nincluding the State as a litigant, are accorded the same treatment
\nand the law is  administered  in an even handed manner. There is no
\nwarrant for  according  a stepmotherly treatment when the ‘State’ is
\nthe applicant praying for condonation of delay. In fact  experience
\nshows that on account of an impersonal  machinery\t (no one  in charge
\nof the matter is directly hit or hurt by the judgment sought to be
\nsubjected to appeal) and the in-390 herited bureaucratic methodology
\nimbued with the  note-making,  file pushing, and passing-on-the-buck
\nethos, delay  on its part is less difficult to understand though more
\n difficult  to approve. In any event, the State  which  represents
\nthe  collective cause of the community, does not  deserve  a
\nlitigant-non-grata  status. The Courts therefore have to  be informed
\nwith the spirit and philosophy of the provision  in the  course of
\nthe interpretation of the expression  “sufficient cause”.
\nSo also the same approach has to be  evidenced in  its application to
\nmatters at hand with the end in view to  do even handed justice on
\nmertis in preference  to the approach which scuttles a decision on
\nmerits. Turning to the facts of the matter giving rise to the present
\nappeal, we are  satisfied that sufficient cause exists for the delay.
\nThe order of the High Court dismissing the appeal before  it as time
\nbarred, is therefore. set aside. Delay is  condoned. And the matter
\nis remitted to the High Court. The High Court will  now  dispose of
\nthe appeal on merits  after  affording reasonable opportunity of
\nhearing to both the sides. Appeal is allowed accordingly. No costs.
\nAppeal allowed.”\n<\/p>\n
7.\tA
\nreference may also be made to the observation of this Court in the
\ncase of Special Land Acquisition Officer, Godhra V\/s. Lilavatiben
\nKodar Ranchhod & Others reported in 2002(3) GLH 226
\nwherein at para 7 it is observed that :-\n<\/p>\n
“7.\tApart
\nfrom that the ultimate anxiety of the Court while dealing with an
\napplication of condonation of delay has been, to see that ordinarily
\nno meritorious matter is thrown over board on the technical grounds
\nof delay.  The purpose   and  design  incorporating  the  provisions
\nof Section 5 of the Limitation Act is to see that ordinarily a
\nsubstantial  justice  is  required  to  be  given  and ordinarily,
\nunless   there  are  circumstances  running counter to the spirit of
\nthe provision of section 5,  the meritorious  matters  are  required
\nto be dealt with and adjudicated upon on merits.  It is rightly said
\nthat  no party  or  person would stand benefitted by filing appeal or
\napplication late without any reason ordinarily when he has made up
\nhis mind to  challenge  the  impugned  order, award, judgment  or
\ndecision, as the case may be.  There cannot be such presumption also.
\n This proposition of law is also very well settled since long.
\nTherefore,  while dealing with an application for condonation of
\ndelay, one cannot start with presumption that party did not intend to
\nquestion it.  On the contrary, the presumption may  be other way
\nround.    Whereas  in  the  present case it is manifested in the
\napplication that the certified copy  of the impugned common award was
\napplied for on the same day when the Reference Court   finalized  the
\n matters.  Therefore, the contention that delay cannot  be  condoned
\nin   this   group   of   matters   is  unsustainable  and
\nunacceptable.”\n<\/p>\n
8.\tMr.Dave,
\nlearned advocate for the respondent-Company, has submitted that the
\namount was offered to the concerned workman. He has also tried to
\nmake other submissions as regards the allegations of the applicants
\nin the petition.  However, the said submissions are on merits of the
\nmatter\/dispute and would be relevant at the time when the application
\nfor review is to be considered. The respondents would get an
\nopportunity to oppose, on merits, the application seeking review.
\nHowever, the said objections are not relevant so far as the request
\nfor condonation of delay is concerned. It is pertinent that any
\nallegations of malafides are not made.\n<\/p>\n
9.\tHaving
\nregard to the explanation given by the applicants and in view of the
\nobservations in the aforesaid decision, in my view, the applicants
\nhave made out sufficient cause to condone delay and the cause for
\ndelay has been satisfactorily explained.\n<\/p>\n
10.\tUnder
\nthe circumstances, the application deserves to be allowed. Therefore,
\nthe following order is passed.\n<\/p>\n
10.1\tThe
\nrelief prayed for in Para-3(A) is granted, delay of 673 days caused
\nin preferring application seeking review of the order dated
\n22.01.2009 is condoned.\n<\/p>\n
10.2\tWith
\nthe clarification that it would be open to the respondents to raise
\nobjections on merits at the time when the application for review is
\nconsidered.\n<\/p>\n
10.3\tWith
\nthe aforesaid clarifications, observations and directions, present
\nCivil Application stands disposed of.  Rule is made absolute to
\naforesaid extent. In the facts and circumstances of the case, there
\nshall, however, be no order as to cost.\n<\/p>\n
(K.M.\n<\/p>\n
Thaker, J.)<\/p>\n
rakesh\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Govindbhai vs Priyanka on 28 April, 2011 Author: K.M.Thaker,&Nbsp; Gujarat High Court Case Information System Print CA\/15\/2011 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION – FOR CONDONATION OF DELAY No. 15 of 2011 In MISC.CIVIL APPLICATION (STAMP NUMBER) No. 3268 of 2010 In SPECIAL CIVIL APPLICATION No. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-172712","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGovindbhai vs Priyanka on 28 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/govindbhai-vs-priyanka-on-28-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Govindbhai vs Priyanka on 28 April, 2011 - 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