Ashok Kumar Gangwani vs Smt. Manto Bai
2022 Latest Caselaw 5352 MP

                                     1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                               FA No. 131 of 2017
                 (ASHOK KUMAR GANGWANI Vs SMT. MANTO BAI AND OTHERS)

Dated : 12-04-2022
      Shri Anand Vinod Bhardwaj, learned counsel for the appellant.

      Shri Surendra Kumar Mishra, learned counsel for the respondents No.1 to 4.

Shri Shiraz Kureshi, learned Government Advocate for the respondent No.5/State.

Heard on I.A. No.2481/2017, an application u/S.5 of Limitation Act for condonation of delay in filing the appeal.

Learned counsel for the appellant submitted that the present appeal has been filed against the judgment and decree dated 26/02/2016 passed by the learned trial Court. Against the said judgment, the first appeal could not have been filed before this Court within 90 days as counsel for the appellant was suffering from chornic high blood pressure since last one and half years and intermittent memory loss due to which the appellant could not be intimated about the result of the case. Even the office file was lost and whole record is obtained in certified copy. It is further submitted that counsel for the appellant, thereafter, suffered from brain hemorrhage on 23/2/2017 and since then is on bed and has not resumed the his work properly.

The appellant continuously contacted his counsel but he was given assurances. The plaintiff was aware that evidence is over, therefore, he did not go to the Court. Ultimately, on much persistence, the certified copy was applied on 28/04/2017 which was delivered on 04/05/2017 and as such seven days deserves to be excluded. In such circumstances, he prays to condone the delay.

Reply to the application u/S.5 of Limitation Act is filed on behalf of respondents stating therein that averments made in the application are false. The reasons assigned to file the appeal after prescribed period is insufficient and vague. The application is not supported by medical evidence, therefore, he prays for dismissal of application.

Heard learned counsel for both the parties.

The facts mentioned in the application u/S.5 of Limitation Act filed by appellant is duly supported by affidavit of appellant- Shri Ashok Kumar Gangwani

as well as affidavit of his counsel- Rajendra Sagoria, therefore, there is no reason to disbelieve the reasons assigned in the application. The reasons assigned in the application, seems to be bona-fide.

Apex Court in the case of State of Karnataka Vs. Moideen Kunhi

(dead) by LRs and Ors. [AIR 2009 Supreme Court 2577] held that the court must adopt liberal view while dealing with the application u/S.5 of Limitation Act and dispute between the parties should be decided on merits not on technicalities.

Thus, considering the overall facts and circumstances of the case as well as the principles laid down by Hon'ble Supreme Court in aforesaid case, I.A. No.2481/2017 is hereby allowed subject to payment of cost of Rs.5,000/- (Rs. Five Thousand Only) to be deposited in the bank account of respondents No.1 to 4 by the appellant within a month from today and report in that regard be filed before the Registry of this Court.

I.A. No.1486/2022, an application for urgent hearing stands disposed of in the manner as indicated above.

List the case in week commencing 04/07/2022.

(SUNITA YADAV) JUDGE

vpn VIPIN KUMAR AGRAHARI 2022.04.13 15:16:19 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'