Badrilal And 4 Others vs Nanda @ Nandlal And Anr.
2022 Latest Caselaw 5421 MP

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                                            SECOND APPEAL No. 68 of 2014
        IN THE HIGH COURT OF MADHYA PRADESH
                           AT INDORE
                            BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA

                     ON THE 13th OF APRIL, 2022

                   SECOND APPEAL No. 68 of 2014

     Between:-
     BADRILAL AND 4 OTHERS S/O NATHULAL , AGED ABOUT 48
1.   YEARS, OCCUPATION: AGRICULTRIST CHOSTI MATA
     MOHALLA, SUSNER (MADHYA PRADESH)
     CHANDARLAL S/O NATHULAL OCCUPATION: KHETI
2.   CHOSHTHRI MATA MOHALLA SUSNER DIST. AGAR (MADHYA
     PRADESH)
     RAMUBAI @ RATANBAI S/O NATHULAL OCCUPATION: KHETI
3.   CHOSHTHI MATA MOHALLA SUSNER DIST. AGAR (MADHYA
     PRADESH)
     DHAPUBAI D/O NATHULAL OCCUPATION: KHETI CHOSHTHI
4.
     MATA MOHALLA SUSNER DIST. AGAR (MADHYA PRADESH)
     GEETABAI D/O NATHULAL OCCUPATION: KHETI CHOSHTHI
5.
     MATA MOHALLA SUSNER DIST. AGAR (MADHYA PRADESH)
                                                  .....APPELLANT
     (BY SHRI S.M. BANGUR, ADVOCATE )

     AND

   NANDA @ NANDLAL AND ANR. S/O NATHULAL , AGED ABOUT
1. 60 YEARS, JAISWAL COLONY, NALKHEDA (MADHYA
   PRADESH)
2. STATE OF M.P. THR: COLLECTOR (MADHYA PRADESH)
                                              .....RESPONDENTS
     (BY SHRI K.C. KAUSHAL, ADVOCATE )
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                                                 SECOND APPEAL No. 68 of 2014
This appeal coming on this day, the court passed the following:

                                ORDER

Both the parties heard finally.

The present second appeal has been filed by appellants/defendants under Section 100 of the Code of Civil Procedure (in short CPC) against the judgment and decree dated 31.1.2014 passed by Additional District Judge Susner District Shajapur in civil appeal No. 7/2014 whereby the first appeal filed by appellants has been dismissed being barred by time.

The facts of the case in brief are that respondent no.1/plaintiff had filed a civil suit for declaration of title, partition, possession and permanent injunction against the appellants/defendants. The appellants/defendants filed their written statement in that suit. On the aforesaid pleadings, the trial court has framed the issues and permitted the parties to lead evidence. The trial court had decreed the suit and preliminary decree for partition, declaration of title, permanent injunction and possession has been passed in favour of respondent no.1/plaintiff. Thereafter the appellants/defendants had preferred first appeal under Section 96 of CPC before the first appellate court. The first appellate court dismissed the appeal as barred by time of 3 months and 5 days. Before the first appellate court an application under section 5 of

SECOND APPEAL No. 68 of 2014 Indian Limitation Act was filed by the appellants praying therein to condone the delay. But the same was also dismissed. Eventually the appeal has been also dismissed as barred by time by the learned first appellate court.

In this manner this second appeal has been filed by appellants/defendants.

Learned counsel for the appellants contended that the prescribed period of limitation to file the first appeal is 30 days and the time spent in obtaining the certified copy of the judgment and decree should be excluded. The judgment and decree was passed by learned trial court on 12.9.2013 and thereafter appellant Badrilal had fallen ill and other appellants were engaged to look-after him. After the treatment when appellant Badrilal got well he contacted his counsel and thereafter obtained certified copy of the judgment and decree of the trial court. Then the appellants had filed the first appeal before the first appellate court with a delay of three months and five days which has been properly explained by appellant. The learned first appellate court erred in substantial error of law in holding that no proper reason has been assigned by appellants for the delay. The first appellate court has erroneously dismissed the appeal. Hence he prays that the impugned judgment and decree passed by the first appellate court be set aside.

Per contra learned counsel for respondent supported the

SECOND APPEAL No. 68 of 2014 impugned judgment and decree passed by the first appellate court and prays for rejection of this second appeal.

Both the parties heard at length and perused the record of the courts below.

This court on 17.9.2014 had admitted the second appeal on following substantial question of law:-

"Whether the lower appellate court committed error in dismissing the appeal as barred by limitation though the sufficient ground for condonation was available as enumerated in the application filed before him, however, the finding as recorded by the lower appellate court is sustainable in law?"

This court has perused the judgment of the learned first appellate court dismissing the first appeal on the ground of limitation. This court is of the considered view that the approach of first appellate court in the matter of condonation of delay has been erroneous. The impugned judgment of the first appellate court shows that the court was influenced by the fact that delay of 3 months and 5 days had not been properly explained by appellants. But it appears that appellant Badrilal had filed certain medical document of his treatment which is well supported by the affidavit of appellant Badrilal. Therefore, proper explanation for the aforesaid period has been given which is well supported by medical

SECOND APPEAL No. 68 of 2014 certificate which in the facts and circumstances of this case this Court sees no reason to disbelieve. There is no document in rebuttal that appellant Badrilal was not ill and therefore, according to this Court, the first appellate court in absence of any document in rebuttal has erred in substantial error of law that medical certificate is a concocted document.

The Hon'ble Apex court in case of Jadhavrao Anandrao Pawar Vs. Dilip Balvantrao Pawar reported in2002)II) MPWN 115 has held that delay of 14 days duly explained by filing medical certificate should be condoned.

Hence this Court is of the view that there was sufficient material to condone the delay and appellants had shown sufficient cause for not preferring the first appeal within time. The substantial question of law is thus answered in favour of appellants.

Resultantly, this second appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the first appellate court dated 31.1.2014 is hereby set aside and the application filed under Section 5 of Limitation Act by appellants which is barred by 3 months and 5 days is hereby allowed and delay in filing the first appeal is hereby condoned.

The first appellate court is hereby directed to decide the appeal on its own merits.

Both the parties are directed to appear before the first

SECOND APPEAL No. 68 of 2014 th appellate court on 13 May 2022 for receiving direction with regard to the re-hearing of appeal on merit.

This appeal is accordingly allowed with no order as to costs. C.C. as per rules.

(ANIL VERMA) JUDGE BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.04.13 19:45:30 +05'30'