IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 17991 of 2023 ==========================================================

BABUBHAI KANJIBHAI BORICHA Versus SECRETARY, GUJARAT STATE & ORS.

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Appearance:

MR HIRENKUMAR M NIYALCHANDANI(9959) for the Petitioner(s) No. 1 for the Respondent(s) No. 2,3,4,5 MR ROHAN RAVAL AGP ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 01/08/2024

ORAL ORDER

The orders declining to condone the delay of 05 years and 11 months caused in preferring the application seeking revival of the suit which came to be dismissed for non-prosecution passed by the Courts below are sought to be challenged in this petition under Article 227 of the Constitution of India.

2. Learned advocate for the petitioner has submitted that petitioner is seeking condonation of delay mainly on the ground that petitioner did not remain present before the court below as the brother of the petitioner was ill and suffering from various decease like cancer and therefore as the petitioner was busy with the medical treatment of his brother, petitioner could not remain vigilant and therefore suit came to be dismissed. He would further submit that if the suit is not restored, the petitioner would suffer irreparable loss and great prejudice would be caused to him and therefore instead of deciding the matter on technical ground the petitioner may be given an opportunity to prove his case on merits. He would therefore submit to allow this petition by quashing and setting aside the order of the courts below and to restore the suit.

3. At the outset, relevant observations made in paragraph 15 in the decision in case of Esha Bhattacharjee Versus Managing Committee Of Raghunathpur Nafar Academy [2013 (12) SCC 649] may be referred to which reads thus:

“15. From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms "sucient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona des imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is conco