Minor Devanshi Digvijaysinh vs Ratan Charan Parbatbhai

Gita Gopi, J

Order in CA 2/2023:

Heard the learned advocate for the applicants.

By way of this application under Section 5 of the Limitation Act, 1963, the applicants have prayed for condonation of delay of 695 days occurred in preferring the application.

Learned advocate for the applicant submits that the matter was dismissed for non-prosecution because of the reason that the aged grand mother had to take care of two minors and she could not make arrangement for court fees and thus, the matter was pending in office objections. The dismissal order did not permit the applicant to address the Court of the inability of the applicant to make provision for the court fees and thus, that had led to delay of 695 days occurred in filing the restoration application.

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 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.”

Having heard the learned advocate for the applicants and considering the averments made in the application and as the delay is sufficiently explained and in view of the facts and circumstances of the case, the delay of 695 days occurred in filing the application deserves to be condoned and is hereby condoned.

Accordingly, the present application is allowed.

Order in MCA 1/2023:-

Heard the learned advocate for the applicants.

By way of this application, the applicants have prayed to restore the main First Appeal.

Learned advocate for the applicants submits that the First Appeal was dismissed for non-prosecution as the applicants could not timely remove the office objections.

Having heard the learned advocate for the applicants and considering the averments made in the application, the main First Appeal is ordered to be restored on the file and one month’s time is granted to the applicants to remove the office objections. Accordingly, the present application stands disposed of.