HANSABEN GIRISHKUMAR SMT Vs. GIRISHKUMAR BABULAL RAJA
HIGH COURT OF GUJARAT
GIRISHKUMAR BABULAL RAJA
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(1.) This revision application is filed by the original-applicant wife whose application for condonation of delay in filing revision application before the learned Addl. Sessions judge Rajkot against an order passed by the learned JMFC Gondal on 31/08/1981 refusing to grant maintenance has been rejected. The cause advanced for not being able to file the revision application in time was that the mother of the applicant-wife was sick and she had to attend to her and hence she could not take further steps for filing the revision application in time. The judgment and order rejecting the application of the applicant-wife was passed on 31/08/1981 and the revision application was filed beyond the period of limitation and there was delay of about 108 days in filing the revision application. The learned Additional Sessions Judge Rajkot took the view that there were other members of the family of the applicant-wife i.e. the father brother of the applicant who could have looked after the ailing mother and she could have spared at least a day or two for approaching the advocate and for taking further steps for filing the revision application. The learned Addl. Sessions Judge has not taken into consideration the principles laid down by this High Court in the case of KARIM ABDULLA V. HEIRS OF DECEASED BAI HOORBAI JAMA AND OTHERS REPORTED IN 16 GLR AT PAGE 835 wherein it has been held that the expression sufficient cause employed in sec. 5 of the Limitation Act is to be interpreted in a liberal manner so as to advance the cause of substantial justice particularly when no negligence or inaction or want of bona fides is imputable to a party. This court has laid down the following guidelines to be kept in mind while deciding the case of condonation of delay:
1 Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2 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.
3 Every days delay must be condoned does not mean that a pedantic unpragmatic approach should be made. Why not every hours delay every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner.
4 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 a vested right in injustice being done because of a non- deliberate delay.
5 There is no presumption that delay is occasioned deliberately or on account of culpable negligence or un account of mala fides. The presumption would be just the other way round.
6 It is unreasonable to adopt the approach of a school master using his rod to discipline the student. One need not bend backwards in such matters. The attitude must be one informed with greatest awareness for the cause of justice.
7 It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and expected to do so. In the instant case it is not even disputed that the mother of the applicant-wife was sick the defence is that the other members of the family could have looked after her.
(2.) The counsel for the opponent has relied upon the decision of the Supreme Court in the case of AJIT SINGH THAKUR SINGH AND ANOTHER V. STATE OF GUJARAT REPORTED IN 1981 CRIMINAL LAW JOURNAL 993 and submitted that in view of this decision the delay should not be condoned. In that case the cause for delay was not referable to the period prior to the period of limitation. In that case the Government initially decided not to file appeal but when the High Court in a revision application filed by a private party made observation that the case was fit in which the Government should prefer an appeal the Government again went through the papers and thereafter decided to file appeal. All this exercise was done after the period of limitation was over. In these circumstances the Supreme Court held that no event or circumstance arising after the expiry of limitation can constitute such Sufficient cause. In the instant case it is the case of the applicant-wife that her mother was sick right at the time when the decision was pronounced by the trial court. The sickness continued and on account of this sickness the applicant had to attend to her mother and hence delay in filing the revision application. Therefore it is clear that the cause of delay has reference to the period even prior to the expiry of the period of limitation. In this view of the matter the decision cited by the counsel for the opponent is of no help to him.
(3.) The counsel for the opponent further submitted that period of 5 or 6 days after the certified copy was ready has not also been explained. In view of the principles laid by this High Court in Karim Abdullas case (Supra) if the liberal view of the matter is taken this delay can also be said to be sufficiently explained in the instant case. No other contention was raised and it is not even alleged that the applicant was in any way interested in not prosecuting her application and in not filing the revision application. No lack of bona fides on the part of the applicant can be imputed. Had the principles laid down in the aforesaid decision of this High Court been taken into consideration by the learned Additional Sessions Judge he would have probably not refused to condone the delay. It appears that this decision though reported as far back as in the year 1975 was not brought to the notice of the learned Additional Sessions Judge. Having regard to the principles laid down in the aforesaid decision in Karim Abdullas case (supra) and having regard to the facts and circumstances of the case it is clear that there was sufficient cause for not filing the revision application in time. Hence the order passed by the learned Additional Sessions Judge refusing to condone the delay is hereby quashed and set aside and the delay in filing the revision application is condoned. The learned Additional Sessions Judge is directed to register the revision application on regular file and proceed to deal with the same in accordance with law. Rule is made absolute. Application allowed.;
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