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2011 DIGILAW 14 (GUJ)

Maneklal Atmarambhai Patel v. Ajay Gopaldas Kothari

2011-01-12

RAJESH H.SHUKLA

body2011
Judgment Rajesh H. Shukla, J.—The present application has been filed by the applicant, original defendant No. 1, for condonation of delay of 894 days in filing the revision application on the grounds set out in detail in the application, inter alia, that the applicant is old and was seriously ill, was hospitalised and therefore could not attend the Court. It is also stated that the advocate who had appeared for him has also expired after illness and therefore there is delay in filing the revision application. 2. An affidavit-in-reply has been filed by respondent Nos. 1 & 2 raising an objection with regard to condonation of delay on the ground that the application is vague and the applicant has failed to explain the delay. Therefore, the applicant has failed to show sufficient cause for condonation of the delay. It is also contended that the Learned Advocate appeared in the lower appellate Court and thereafter the Learned Advocate died due to sickness which is not relevant for considering the sufficient cause for condonation of delay. 3. Learned Advocate Mr. Brahmbhatt referred to the papers and submitted that as the applicant himself is aged and was ill, he could not follow up his matter and thereafter the Learned Advocate who had appeared before the lower appellate Court was also ill and expired. Therefore, due to communication gap there is delay in filing the revision application which may be condoned considering the provisions of Section 5 of the Limitation Act. He submitted that a liberal approach is required to be adopted while considering such application if sufficient cause is made out. He submitted that the illness and the age of the applicant is sufficient cause to exercise such discretion. 4. Learned Counsel Mr. Divetia appearing for respondent Nos. 1 & 2 resisted the application and referred to the contentions raised in the affidavit-in-reply and submitted that the application is vague as it has not stated or explained as to when he made the application for a certified copy, when he came to know about it and it is all vaguely stated. Learned Counsel Mr. Divetia also submitted that even the application for a certified copy has been made much late after the period of limitation has expired which suggests that he was negligent and therefore the delay may not be condoned as no sufficient cause can be said to have been made out. Learned Counsel Mr. Divetia also submitted that even the application for a certified copy has been made much late after the period of limitation has expired which suggests that he was negligent and therefore the delay may not be condoned as no sufficient cause can be said to have been made out. He submitted that the death of the advocate who appeared before the lower appellate Court is not relevant as he had represented the case and thereafter he has expired. 5. Learned Counsel Mr. Divetia, in support of his submissions, has referred to and relied upon the judgment of the Hon’ble Apex Court reported in (2008) 17 SCC 448 in the case of Pundlik Jalam Patel (dead) by Lrs vs. Executive Engineer, Jalgaon Medium Project and Anr., and pointedly referred to the observations made in Paras 15, 17 and submitted that the present application may not be entertained. 6. In view of rival submissions, it is required to be considered whether the present application for condonation of delay can be entertained or not. 7. It is well accepted by catena of judicial pronouncements that while considering the provisions of Section 5 of the limitation Act, a liberal approach has to be adopted. It is evident from the principles enunciated that the law of limitation is founded on public policy. In this very judgment, which has been referred to by Learned Counsel Mr. Divetia, in Para 26 referring to Halsbury’s Laws of England it has been quoted, “605. Policy of the Limitation Acts.—The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove the stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” 8. The object of law of limitation is to prevent disturbance or any kind of prejudice to the rights or equity acquired by the party and also to put an end to uncertainty. On the other hand, it is also well accepted that the person should not be made to suffer without contesting on merits or approaching the Court on the ground of delay. On the other hand, it is also well accepted that the person should not be made to suffer without contesting on merits or approaching the Court on the ground of delay. It is in this background the law of limitation has been made which itself provides for the condonation of delay subject to fulfillment of the criteria like explaining the sufficient cause as provided in the law. 9. The judgment which has bean cited by Learned Counsel Mr. Divetia had different facts with regard to government contract and therefore it will not have much relevance. 10. A useful reference can be made to the judgment of the Hon’ble Apex Court reported in (2010) 5 SCC 459 in the case of Oriental Aroma Chemical Industries Ltd. vs. Gujarat Industrial Development Corporation and Anr. wherein, referring to the various judgments, the Hon’ble Apex Court observed as under: “We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression “sufficient cause” employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate.” 11. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate.” 11. It is in these circumstances, keeping in mind the aforesaid observations and the guidelines, the reason or the cause stated about the illness and the old age and also the fact that the advocate who appeared before the lower appellate Court had also expired resulting in a communication gap, can be said to be sufficient cause. The submission made by Learned Counsel Mr. Divetia about the vagueness of the application or that the advocate who had appeared before the lower appellate Court has expired thereafter and therefore would not be a ground, cannot be accepted. 12. In the circumstances, in light of the discussion made hereinabove, sufficient cause for condonation of delay has been made out and accordingly the present application deserves to be allowed and accordingly stands allowed. Prayer in terms of Para 7(a) is granted. The delay of 894 of days in filing the Revision Application is hereby condoned. Rule is made absolute accordingly. No order as to costs. Civil Revision Application to be placed on board on 18.1.2011. P P P P P