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Judgment
Gita Gopi, J
Draft amendment is allowed.
The present application has been filed for condonation of delay of 476 days caused in filing the First Appeal.
Mr. Kaash K.Thakkar, learned advocate for the applicants states that the deceased was a pillion rider on motorcycle and therefore it would be a case of composite negligence for him as per judgment of Khenyei Vs. New India Assurance Company Ltd., reported in (2015) 9 SCC 273. Mr. Thakkar submitted that in spite of proposition of law laid down in Khenyei (supra), the learned Tribunal has bifurcated and apportioned the negligence aspect along with the compensation which is not warranted as per the judgment.
3.1 Thus, Mr. Thakkar submitted that initially Execution Petition was filed against G.S.R.T.C., since the applicants were suffering financial crunch at the relevant time to move the appeal and was waiting for deposit of the compensation amount, but G.S.R.T.C. failed to do so and only 70% amount was deposited, while 30% yet not deposited. Mr. Thakkar submitted, that would be against the judgment of Khenyei (supra).
The delay is 476 days, which would be considered as longer delay; however, as per the applicants they were waiting for deposit of the money, but as reported 70% amount was deposited in the year 2021; thus, Mr. Thakkar submitted that now being a high time to challenge the judgment, they have preferred the appeal, however, there has been delay of 476 days, which he submits that the claimants are willing to waive the interest on any of the amount, which would be enhanced on the grounds so raised.
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 meaning- ful 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 con-doned 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.”
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 476 days caused in filing the First Appeal is condoned. The application is allowed.
The interest amount for the delayed period would stand foregone in view of the submission made by learned advocate for the applicants.