The Tehsildar vs Sureshchandra
2022 Latest Caselaw 4265 MP

  HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                      Second Appeal No.1273/2020
               (The Tehsildar, Kannod & Ors. Vs. Sureshchandra)
                                    -1-

Indore, dated 28/03/2022
       Shri Hitendra Tripathi, learned Deputy Government Advocate
for the appellants / State.
       Shri D. S. Kale, learned counsel for the sole respondent.

Counsel for both the parties are heard on IA.No.2776/2020, which is an application under Section 5 of the Limitation Act, 1963 for condonation of delay As per the Registry's report, there is a delay of 1533 days in filing the present second appeal.

Counsel for the appellants submits that appellants have filed the present second appeal being aggrieved by the judgment and decree dated 05/10/2015 passed by Additional District Judge, Tehsil Kannod, District Dewas in Civil Regular First Appeal No.22-A/2014. Thereafter, Government pleader sent his opinion to the Tehsildar Kannod vide letter dated 16/12/2015. Sub Divisional Officer (Revenue) also sent proposal for filing of the appeal and for its sanction to the Collector, Dewas to obtain necessary permissions for filing of appeal from the Law Department.

Thereafter, Collector, Dewas sent the proposal for filing the present second appeal to the Secretary, Revenue Department vide letter dated 08/01/2016 and Secretary, Revenue Department completed all HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Second Appeal No.1273/2020 (The Tehsildar, Kannod & Ors. Vs. Sureshchandra)

the necessary formalities to provide the approval for submitting the second appeal. However, by the time formalities were completed, a substantial time had lapsed. Then the SDO (Revenue) written a letter to the Collector for inquiry about the status of the permission. After receiving the permission from the Secretary, Revenue Department, the Collector vide its letter dated 19/02/2020 directed the SDO (Revenue), Kannod to prefer the present second appeal without any further delay. Thereafter, the entire country went into lockdown on account of Covid-19 Pandemic and there was a complete shutdown of the unnecessary work affairs in the revenue department as well as in the Government Advocate Office.

Officer-in-charge contacted the Government pleader for obtaining the copy of plaint, copy of written statement, copy of the statement of witnesses and judgment and decree of the trial Court. In the aforesaid procedural compliance, this appeal became barred by 04 years and 08 months. The delay in filing the appeal has been caused due to the aforesaid reasons. Hence, the delay of 04 years and 08 months be condoned.

Counsel for the sole respondent opposed the prayer and prays for its rejection by submitting written reply stating that Secretary, Revenue Department and other Government officials have not HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Second Appeal No.1273/2020 (The Tehsildar, Kannod & Ors. Vs. Sureshchandra)

explained sufficient cause as to why the huge time is consumed in giving such sanction. It is the settled law that in order to get the benefit of Section 5 of the Limitation Act, 1963 sufficient cause must be shown and it must be beyond control. Delay for such a huge period is not sufficiently explained by the appellant, therefore, this application and the appeal filed by the appellants deserves to be dismissed as barred by the time.

I have heard learned counsel for the parties and perused the record.

As per Article 116 of the Limitation Act, 1963 under the Code of Civil Procedure, 1908 limitation for filing a second appeal to a High Court is 90 days and it begins from the date of the decree or order. In the present case, as per the Registry's report, this appeal is barred by 1533 days.

It is a general principle that it is for the party, who is seeking condonation of delay, to satisfy the Court that he had sufficient reasons for not preferring the appeal within time and his explanation must be covered the whole period of delay. It is contended by learned counsel for the appellants that for the aforesaid procedural compliance for obtaining permission from the government, this appeal became barred by 1533 days and delay caused in filing of the appeal is bona-fide. The HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Second Appeal No.1273/2020 (The Tehsildar, Kannod & Ors. Vs. Sureshchandra)

officer-in-charge, SDO (Revenue) Narendrasingh has filed his affidavit in support of the application.

Counsel for the appellants placed reliance on a judgment passed by this Court in the case of State of M. P. Vs. Narendra Kumar Tiwari and Others reported in 2016(1) MPLJ 658, in which the co- ordinate Bench of this Court has held as under:-

"13. In the judgment in the matter of Ramji Pandey (supra) which the respondent is relying upon, it was found that the concerned appellant was not diligent in prosecuting the matter and was negligent inasmuch as he had failed to appear and contest the suit which had proceeded ex parte and had even not appeared before the High Court when the order was passed, but no such circumstances exist in the present case.

14. The Supreme Court in the matter of Badlu and Another Vs. Shiv Charan and others, reported in (1980) 4 SCC 401 has held that if a litigant is pursuing a bona fide civil proceeding with due diligence and in good faith in any appeal or revision, he is entitled to the exclusion of time taken in such proceeding.

15. So far as the period after the dismissal of Second Appeal on 10.5.2007 till the filing of the present Miscellaneous Appeal on 4.4.2008 (within a period of about 325 days), it is found that the appellant in the I.A. No.3892/2008 has explained the delay which reveals that though the certified copy of the order of Second Appeal was received on 23.5.2007 and the certified copy of the order passed in Insolvency Case No.2/70 was applied but was not received inspite of the efforts. Thereafter a photocopy of the said order was made available by the Government advocate and communication dated 6.2.2008 was sent through the office of the A.G. The OIC had contacted on 3.4.2008 and the appeal was prepared and filed on 4.4.2008. In these circumstances it is found that the said delay has also properly been explained.

16. The Supreme Court in the matter of J. Kumaradasan and Another Vs. IRIC Sohan and others, reported in (2009) 12 SCC HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Second Appeal No.1273/2020 (The Tehsildar, Kannod & Ors. Vs. Sureshchandra)

175 has held that provisions contained in Section 5 and 14 of the Limitation Act are made for grant of relief where a person has committed some mistake and they should be applied in a broad based manner and the Court will not apply such beneficent provisions in a pedantic manner."

It is generally observed that officials in Government department at several levels take their own time in proceeding files and taking necessary decisions, although there may not be negligence or deliberate delay on their part. The underlying principles which has to be borne in mind in all such cases remains that Courts are required to do substantial justice in the matters coming before it and would spurn the attempts at denial of justice on technical grounds.

Learned counsel for the respondents has placed reliance on a judgment delivered by the apex Court in the case of State of M. P. and Others Vs. Bherulal reported in 2021(1) MPLJ 109 in which Hon'ble apex court has held as under:-

"6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Second Appeal No.1273/2020 (The Tehsildar, Kannod & Ors. Vs. Sureshchandra)

in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation."

After considering all the facts and circumstances of the case, it appears that delay is occasioned because the Legal Remembrancer took sufficient time to give opinion in the matter and grant sanction to the concerned department to file the appeal, no negligence can be attributed to the appellants. The appellants acted with promptitude. Sufficient cause has been shown by the appellants for not filing the appeal within time. In these circumstances of the instant case, the delay ought to have been condoned.

Therefore, IA.No.2776/2020 preferred by the appellants is allowed and delay of 1533 days in filing this second appeal is hereby condoned.

Counsel for the appellant is directed to argue the matter on the question of admission on the next date of hearing.

List the matter after four weeks.

(ANIL VERMA) JUDGE Tej

Digitally signed by TEJPRAKASH VYAS Date: 2022.03.28 19:16:20 +05'30'