Madhya Pradesh High Court
Usman Khan vs Smt Rinshi Mittal on 24 September, 2021
Author: Deepak Kumar Agarwal
1
High Court of Madhya Pradesh
SA No. 851/2020
Usman Khan vs. Smt. Rinshi Mittal and Ors.
Gwalior, Dtd. 24/09/2021
Heard through hybrid system of physical/ virtual hearing.
Shri Narottam Sharma, learned Counsel for the appellant/ defendant
No.1.
Shri NK Gupta, learned Senior Counsel with Shri Sanjay Kumar
Sharma, counsel for respondent No.1/ plaintiff.
Heard on IA No.3023/2020, an application u/S.5 of Limitation Act for
condonation of delay in filing the present appeal.
As per Office note, there is a delay of 86 days in filing the appeal.
It is submitted on behalf of the appellant/defendant that after passing
the judgment and decree dated 19/09/2019 by Appellate Court, appellant
applied for certified copy of the same on 06/03/2020 and the same was
obtained by him on 07/03/2020. The present appeal ought to have filed
within the period of limitation but same same was filed on 13/03/2020
barred by 86 days. It is further submitted that appellant is an old person aged
about 74 years of age. He used to go to Bhopal to get his wife Sultana
Begum treated because his wife is suffering from prolonged disease
Diabetes as well as Kidney dysfunction due to stone in Kidney. In the month
of February, 2020, due to serious condition of his wife, he could not collect
the case from his counsel at Shivpuri and hand over the same to his counsel
at Gwalior. In support of his application, he has filed medical/treatment
documents. After improvement in condition of his wife, appellant obtained
certified copy of the judgment and decree of the Appellate Court on
07/03/2020 and thereafter,on 12/03/2020 he contacted his counsel for filing
the present appeal. Thereafter, he filed the present appeal on 13/03/2020. It
is submitted that the delay is bona fide in nature and not a dilatory tactic. In
support of his contention, the learned Counsel for the appellant has relied
upon the order passed by Indore Bench of this Court in the case of Bashir
Khan vs. Jamila Bai and Another [CR No.162 of 2019, decided on
21/06/2019] and the judgment passed by Apex Court in the case of Ram
Nath Sao vs. Gobardhan Sao & Others, reported in (2002) 3 SCC 195.
By filing reply, the condonation application is strongly opposed by
plaintiff's counsel by submitting that appellant/defendant has merely made a
bald statement without supporting any documentary evidence in regard to
explaining the delay in filing the appeal on the ground of non-collecting the
case file from this counsel at Shivpuri and on the ground that his wife was
seriously ill and he was engaged in her treatment at Bhopal. Therefore, delay
in filing the appeal has been caused due to lackluster and negligent attitude
of appellant, thus, no sympathetic or lenient view can be adopted for
condoning the delay in filing the appeal. In support of his contentions, the
plaintiff's counsel has relied upon the judgment passed by this Court in the
matter of State of MP and Another vs. Satyanarayan reported in 2018(4)
MPLJ 463, Lok Pal Singh & Another vs. Matre & Others, reported in
2019(3) MPLJ 331 as well as the judgment of Apex Court passed in the
matter of Maniben Devraj Shah vs. Municipal Corporation of Brihan,
Mumbai reported in (2012) 5 SCC 157.
Considering the arguments advanced by learned Counsel for rival
parties as well as considering the law laid down by this Court as well as
Apex Court, sufficient cause has been shown by appellant/defendant in
filing the present appeal. Accordingly, the prayer for condonation of delay in
filing the present appeal is accepted and the delay of 86 days in filing the
appeal is hereby condoned.
IA No. 3023/2020 stands disposed of accordingly.
List the matter for admission.
(Deepak Kumr Agarwal)
Judge
MKB
MAHENDRA Digitally signed by MAHENDRA KUMAR BARIK
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474011, st=Madhya Pradesh,
KUMAR BARIK
2.5.4.20=f592da990684fe30f8e1e29a4a1a9e3451ee450d883083
a8e4cc8020eee6f7cb, cn=MAHENDRA KUMAR BARIK
Date: 2021.09.24 17:04:15 +05'30'
