Kalabhai Galbabhai Bhangi vs Shinavad Kelavani Mandal

Rajendra M. Sareen, J

[1] Present application under section 5 of the Limitation Act has been preferred by the applicant – original appellant for condonation of delay of 1043 days caused in preferring the main Second Appeal challenging the judgement and order dated 30/12/2016 passed by the learned Additional District Judge, Aravalli at Modasa in Regular Civil Appeal No.90 of 2013 (Old Regular Civil Appeal No.76 of 2012) preferred by the present applicant under section 96 of the Code of Civil Procedure whereby the learned Judge has disallowed the aforesaid appeal and confirmed the order and decree dated 23/10/2012 passed by the learned Principal Senior Civil Judge, Modasa in Regular Civil Suit No.76 of 2007.

[2] Mr.Krunal Pandya, learned advocate for the applicant has submitted that the delay has been caused due to genuine reasons and due to the circumstances which were beyond the control of the applicant. It is submitted that the impugned judgement was pronounced on 30/12/2016 but the advocate who appeared on behalf of the applicant never informed the applicant and when the applicant asked about the case status, advocate always informed that the case is going on and when the applicant namely Lalajibhai Rambhai Bhangi got information on 27/11/2019 from the office of the trial court that their case was dismissed by the trial court, Lalabhai made an application for certified copy on the same day and copy was prepared by the office of the trial court on 29/11/2019 and given to the applicant on 29/11/2019.

[3] Mr.Krunal Pandya, learned advocate for the applicant has further submitted that the applicant is not financially sound to engage advocate before this Court and therefore, the applicant approached the legal aid on 15/12/2019 and legal aid was provided to the applicant and the advocate asked more documents of the trial court and therefore the delay has occurred.

[4] Mr.Krunal Pandya, learned advocate for the applicant has submitted that thus, due to the negligence on the part of the advocate, illiteracy and for want of knowledge of limitation and for want of money, the applicant could not file the appeal within the period of limitation and the appeal has been filed through legal aid.

[5] Mr.Krunal Pandya, learned advocate for the applicant has further submitted that the delay is bonafide and not intentional. It is submitted that the applicant has not obtained any benefits by way of preferring the appeal belatedly. It is submitted that considering the fact that the delay has been caused due to the circumstances which were beyond the control of the applicant, the delay may be condoned.

[6] Mr.Krunal Pandya, learned advocate has further submitted that the applicant has good case on merits and there are all chances of being succeeded in the appeal when the same is heard on merits. It is submitted that the meritorious case may not be thrown out on the technical ground of delay and laches and the main appeal may be considered on merits.

[7] Present application is opposed by Mr.Shaival Patel, learned advocate for the respondent. He has submitted that there is no proper justification of the delay and the delay is long delay and hence the delay may not be condoned.

[8] Heard the learned advocates for the respective parties and consider the detailed averments made in the application for condonation of delay.

[9] On perusal of the averments made in the application in para Nos.3 and 4, this court is of the opinion that sufficient cause is made out and reasons are stated for the delay. It is also averred that the advocate had not informed the applicant about disposal of the case and the applicant Laljibhai Rambhai Bhangi Gor information on 27/11/2019 from the trial court that their case has been dismissed and hence on the same day he applied for the certified copy and copy was prepared on 29/11/2019 and same was given to the applicant. It is averred that as the applicant being poor person, had no money to engage advocate and hence appeal could not be preferred within the period of limitation and thereafter the applicant approached the legal aid and legal aid was provided and the present application has been preferred through legal aid.

[10] In the present case, considering the reasons pleaded for delay, it can be said that the delay has been caused due to the circumstances which were beyond the control of the applicant. For want of money, the applicant could not engage advocate and thereafter the applicant approached the legal aid and legal aid was provided to him and thereafter the present proceedings are filed through legal aid. Further, it is not the case of the respondent that the applicant has taken any benefit of delay by preferring the appeal belatedly. The delay in the present seems to be bonafide and not malafide. According to the opinion of this Court, the delay has been caused due to the circumstances which were beyond the control of the applicant.

[11] Considering the averments made in the application, this Court is of the opinion that the applicant has made out a case for condonation of delay and sufficient reasons have been assigned for the delay. Even otherwise, if the delay is condoned, no prejudice would be caused to the respondent as the main appeal would be heard after hearing the learned advocates for the respondent and on the contrary if the delay is not condoned, the applicant would be deprived of submitting his case on merits and hence so as to enable the applicant to submit his case on merits also, the delay is required to be condoned.

[12] 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 subserves the ends of justice that being the lifepurpose 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:- 1. 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.”

[13] It is settled law that there cannot be straight-jacket formula for condonation of delay and court has to consider the application for condonation of delay in the facts and circumstances of each case.

[14] In view of the above, this Court is of the opinion that the applicant has made out a case for sufficient cause for condonation of delay and in the facts and circumstances of the case, present application is allowed. The delay caused in preferring the main Second Appeal is hereby condoned. Rule is made absolute.