Hasumatiben Pravinsinh Solanki vs Kanusinh Fatehsinh Makwana

Gita Gopi, J

Heard Mr. Nishit A. Bhalodi, learned advocate for the applicants.

This is an application under Section 5 of the Limitation Act for condonation of delay of 596 days which has occurred in preferring the captioned First Appeal.

Mr. Bhalodi, learned advocate for the applicants submitted that the appellant’s advocate had conveyed to the appellant regarding pronouncement of judgment and amount of compensation allowed on 30.07.2018. Thereafter the appellants had replied to his advocate regarding filing of appeal against the order of the tribunal. The appellant went to the office of his advocate on 18.08.2018 to sign the vakalatnama for filing first appeal. Subsequently dealing advocate confirmed that the certified copies will be sent to the High Court advocate and will update regarding the status of appeal. Thereafter the appellants went to the office of dealing advocate on 24.04.2019 to know the status of the appeal filed before the Hon’ble High Court. The dealing advocate confirmed that the certified copies are already sent to the High Court advocate and will confirm the status of the appeal shortly. The appellants again contact the dealing advocate after period of few months to know the status of the first appeal on 24.01.2019. The dealing advocate confirmed that the certified copies sent to the High Court advocate was misplaced or lost in transaction and is not found in the High Court advocate’s office presently. Thereafter the applicant No.1 personally applied for certified copies on 30.01.2020 and the certified copies were received from the court on 10.02.2020. The applicant personally sent the certified copies to the High Court advocate on 24.02.2020. The High Court advocate confirmed the receipt of the certified copies on 27.02.2020. Subsequently the High Court advocate drafted the application for condonation of delay and sent for affidavit on 06.03.2020. Learned advocate for the applicants submitted that in view of the aforesaid reasons the delay of 596 days has been caused in preferring the captioned first appeal.

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 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 sub-serves 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:-

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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.

"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.

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.

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.

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 step-motherly 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 understand though more 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 be informed 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.”

Thus, taking into consideration the principle as laid down in the above referred judgment and when the delay of 596 days is sufficiently explained, the same is condoned. The application is allowed in the aforesaid terms. Rule is made absolute with no order as to costs.