ORAL ORDER

Order dated 06/07/2021 passed by the learned 6th Principal District Judge, Jamnagar in CMA No.46 of 2019 seeking condonation of delay of 692 days caused in preferring the Appeal against the judgment and decree of the trial Court is sought to be challenged in this petition under Article 227 of the Constitution of India.

2. Though served, none has appeared for the respondent.

3. Learned advocate for the petitioner would submit that the delay was caused in preferring the appeal before the appellate Court was due to change of Advocate and therefore some procedural delay was caused. He would submit that there is no mala fide delay or any callous approach on the part of the petitioner and therefore it is submitted that considering the period of delay, it may be condoned.

4. Having heard the learned advocate for the petitioner and keeping in mind the law laid down by the Hon’ble Apex Court, this Court is of the opinion that matter/s should be heard on merits rather than dismissed on the technical grounds of delay. To be noted further that, of course, if there is an inordinate delay caused with callous approach; then the same would not be permitted to condone; but when sufficient grounds are shown and delay is not much huge, then the same requires to be condoned.

5. he Hon'ble Apex Court in case of Collector, Land Acquisition, Anantnag and Anr. Vs. Msr. Katji and Ors. reported in AIR 1987 SC 1353, has observed as under:-

"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 con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "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.

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 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 on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. 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."

6. For the foregoing reasons, the petition succeeds; impugned order is quashed and set aside and delay caused in preferring the RCA is condoned. The learned Court below shall hear the appeal on its own merits.

(J. C. DOSHI,J)

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