Madhya Pradesh High Court
Shankarlal vs Sanjay on 4 May, 2022
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4th OF MAY, 2022
MISC. CIVIL CASE No. 132 of 2021
Between:-
SHANKARLAL S/O PERULAL, AGED ABOUT 40
YEARS, OCCUPATION: AGRICULTURIST VILLAGE
DHABLA REWADI, TEHSIL AND DIST UJJAIN
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI MANISH KUMAR JOSHI, ADVOCATE)
AND
1. SANJAY S/O INDRAPRAKASH OCCUPATION:
VYAPAR 41-42, AZAD NAGAR, DEWAS (MADHYA
PRADESH)
2. RATANLAL S/O DATARAM OCCUPATION: NA
VILLAGE DHABLA REWADI TEHSIL AND DIST
UJJAIN (MADHYA PRADESH)
3. COLLECTOR / DISTRICT MAGISTRATE
COLLECTOR UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VAIBHAB JAIN, ADVOCATE FOR NON-APPLICANT NO.1.
SHRI GOVIND RAI PUROHIT, GOVT. ADVOCATE)
Th is application coming on for orders this day, the court passed the
following:
ORDER
With consent of the parties, matter is finally heard.
This application has been filed for restoration of Second Appeal No.361 of
2014 which has been dismissed for want of prosecution by order dated
22.11.2019. Since the same is barred by time an application bearing I.A. No.592 of
2021 has also been filed under Section 5 of the Limitation Act for condonation of
delay in filing the same.
02. It is submitted on part of applicant that on 22.11.2019 the appeal was
omitted to be marked by his counsel as a result of which he was not aware of
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listing of the case hence could not appear when the same was called for on hearing.
SAN
Digitally signed by JYOTI
As there was no requirement of presence of applicant, he was also not present on
CHOURASIA
Date: 2022.05.07 12:20:43 IST
that day since he had not been called for by his counsel. Thereafter in the month of
March, 2020 lock down was imposed hence he was not in touch with his counsel.
Subsequently when he contacted his counsel in November, his counsel checked
the case and found out that the same has already been dismissed in default.
Thereafter, the applicant promptly filed MCC No.1226 of 2020 on 20.11.2020 for
restoration of the second appeal but since the same was defective it was withdrawn
on 18.01.2021 with liberty to file properly constituted application after which the
instant application has been filed on 29.01.2021. It is hence submitted that there is
sufficient reason for condonation of delay in filing the restoration application.
03. The application has been opposed by learned counsel for non-applicant
No.1, who has also filed written reply and has submitted that applicant has totally
been negligent in prosecution of the case since the very inception. After filing of
the appeal eleven adjournments were sought in the same. Due to repeated non-
appearance of the applicant, the appeal was dismissed in default on 31.03.2016
after which restoration application was filed which was allowed by order dated
31.01.2017 with a direction for listing the appeal. Thereafter, the applicant again
remained absent on the next date but the appeal was adjourned. However,
thereafter also the applicant remained absent as a result of which the appeal has
been dismissed. The entire conduct of the applicant shows that the same is
malafide and he just wants of keep the matter pending and not address the Court
on the question of admission. Despite restoration of the appeal once the applicant
has still not shown any interest in prosecuting the same. His conduct totally debars
him from claiming discretionary relief of restoration of the appeal. Reliance has
been placed by him on the decision of this Court in Sulochana Saryu Prasad
Pandey vs. Lokmanya Sahkari Griha Nirman Sanstha, [1999(1) M.P.L.J.,
431], Ramesh Chandra vs. State of M.P. [2013 (3) M.P.L.J.] 178 and
Muniyam vs. Eromia and another [2013 (2) MWN (Civil) 518.
04. I have heard the learned counsel for the parties and have perused the
record.
05. The reason which has been assigned in the application for condonation
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SAN of delay as well as the restoration application is that the counsel for the applicant
Digitally signed by JYOTI
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Date: 2022.05.07 12:20:43 IST
omitted to mark the cause list on 22.11.2019, as a result of which, he was not
aware of listing of appeal on that day hence could not appear due to which the
appeal was dismissed in default.
06. The applicant has categorically stated that he was not required to remain
present at the time of hearing of the appeal as arguments had to be advanced by his
counsel. If the counsel for the applicant had not appeared when the appeal was
called on for hearing, the applicant cannot be blamed for the same. It is well settled
that it is the cause shown for the particular day which has to be taken into
consideration. In my opinion, the cause shown by the applicant for non-
appearance on 22.11.2019 is a sufficient cause.
07. A perusal of record of the second appeal shows that the applicant has
been seeking time in the same for arguments and has also been absent at times. He
thus has not been as vigilant in the matter as he ought to have been. However, it is
also apparent that the non-appearance on part of the applicant is by his counsel. In
the appeal, it is the counsel who is required to address the Court and presence of
the applicant is not necessary for the same. If the counsel does not appear, then
the blame cannot squarely be of the applicant. While the applicant has not been as
vigilant as expected but he cannot be branded to be such a negligent litigant that he
may not be permitted to contest the matter on merits. The judgments relied upon
by the learned counsel for non-applicant No.1 hence are distinguishable on facts.
08. Thus in view of the aforesaid discussion, I am satisfied that applicant
has shown sufficient reason for the delay in filing the restoration application. The
application is hence allowed and the delay in filing the restoration application is
condoned.
09. Heard on the main application also.
For the reasons as stated aforesaid, I am satisfied that the applicant
was prevented by sufficient cause from appearing when the appeal was called on
for hearing.
10. As a result the application is allowed and S.A. No.361 of 2014
dismissed for want of prosecution by order dated 22.11.2019 is restored to its
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original number for hearing, subject to payment of costs of Rs.5,000/- by the
SAN
Digitally signed by JYOTI
applicant to High Court Bar Association, Indore within a period of one month
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Date: 2022.05.07 12:20:43 IST
from today.
MCC is allowed and disposed off.
Let copy of this order be kept in the record on S.A. No.361 of 2014.
(PRANAY VERMA)
JUDGE
jyoti
Signature Not Verified
SAN
Digitally signed by JYOTI
CHOURASIA
Date: 2022.05.07 12:20:43 IST
