Dinesh Kumar vs Amriat Babu Narware
2021 Latest Caselaw 774 MP

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         THE HIGH COURT OF MADHYA PRADESH
                   MCC No.1281/2018
                (Dinesh Kumar Vs. Amirat Babu Narware)

JABALPUR, DATED : 17.03.2021

     Shri Mahesh Prasad Rajak, learned counsel for the applicant.

     Shri Aditya Pratap Singh, learned counsel for the respondent.

Heard on I.A. No.6117/2018, which is an application for

condonation of delay in filing this MCC as also on the merits of the

MCC.

There is a delay of 1190 days in filing the MCC.

This MCC has been filed for restoration of S.A. No.893/2012,

which has been dismissed in default for non compliance of the

peremptory order dated 09.10.2014.

Learned counsel for the petitioner submits that there was a

defect of deficit payment Court fee and the peremptory order of this

Court in this regard could not be complied with as the same was

passed in the absence of the counsel and it was not within the

knowledge of the counsel. He further submits that on 09.10.2014,

when the matter was listed, the case was not displayed due to some

problem and it could not be noted by the counsel. Hence, the default

could not be cured. He also submits that the fact about dismissal of

the appeal came to the knowledge only when the applicant had made

enquiry about the status of the appeal on 25.02.2018 and on that

basis, the matter was searched and thereafter certified copy was

applied and the present restoration application is filed on 07.05.2018.

Learned counsel for the respondent has opposed the application

and has submitted that the delay has not been properly explained and

in support his submission, he has placed reliance upon the judgment

of the Supreme Court in the matter of H. Dohil Constructions

Company Private Limited Vs. Nahar Exports Limited and another,

(2015) 1 SCC 680.

Having heard the learned counsel for the applicant and on

perusal of the record, it is noticed that though the delay in filing the

present MCC is of 1190 days, but the explanation which is furnished

by the applicant reveals that the order was passed by this Court in the

absence of the counsel for the applicant and the same was not within

the knowledge of the counsel. Hence, neither the counsel nor the

applicant was aware of the dismissal of the appeal on account of non-

compliance of the peremptory order and as soon as the applicant

came to know about dismissal of the appeal, the present MCC has

been filed.

The Supreme Court in the matter of Esha Bhattacharjee v.

Raghunathpur Nafar Academy, (2013) 12 SCC 649, held that:-

"21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (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. 21.2. (ii) The terms "sufficient 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. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (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.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (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. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (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. 21.9. (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. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

So far as the judgment in the matter of H. Dohil Constructions

Company Private Limited (supra) relied upon by the counsel for the

respondent is concerned that was a case where appeal was returned

for rectifying the defect and the same was filed after a delay of about

5 years. Hence, the counsel had full knowledge about the

compliance, which was to be done and, therefore, the Hon'ble

Supreme Court found that there was total lack of bona fides whereas

the circumstances of the present case are entirely different.

Having regard to the aforesaid analyses, I am of the opinion

that the delay deserves to be condoned and S.A. No.893/2012

deserves to be restored subject to payment of appropriate cost to the

respondent.

Hence, I.A. No.6117/2018 is allowed and the delay in filing the

MCC is condoned.

The explanation which has been furnished by learned counsel

for the applicant and reason which has been disclosed in the MCC

reveals that the non compliance of the peremptory order was

unintentional and for the bonafide reason. Accordingly, MCC is

allowed and S.A. No.893/2012 is restored to its original position

subject to payment of cost of Rs.10,000/-(Rupees Ten Thousand

Only) by the applicant to the respondent and payment of deficit

Court fee in the S.A. No.893/2012 within four two weeks from today

and submission of the acknowledgment of payment before the

Registry of this Court.

The MCC is accordingly allowed.

C.C. as per rules.

(PRAKASH SHRIVASTAVA) JUDGE SS Digitally signed by SATEESH KUMAR SEN Date: 2021.03.23 18:22:08 +05'30'