Anand Alias Sukkd Raikwar vs Rupesh Kumar Jaiswal
2022 Latest Caselaw 12155 MP

                                                            SA NO.314/2017



              IN THE HIGH COURT OF MADHYA PRADESH
                           AT JABALPUR

                                BEFORE
                 HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                       ON THE 13th OF SEPTEMBER, 2022

                      SECOND APPEAL No. 314 of 2017



Between:-

            ANAND ALIAS SUKKAD RAIKWAR S/O LATE
            BANTE ALIAS BANTE RAIKWAR, AGED
            ABOUT 42 YEARS, R/O H.NO. 279 SOUTH
            MILONIGANJ WARD, JABALPUR (MADHYA
            PRADESH)

                                                         .....PETITIONER

      (BY SHRI SATISH SHRIVASTAVA-ADVOCATE ALONG WITH MS.
      YASHASHWI SHRIVASTAVA-ADVOCATE)

AND

      1.    RUPESH KUMAR JAISWAL S/O SHARDA
            PRASAD JAISWAL, AGED ABOUT 32 YEARS,
            R/O H.NO. 581, SOUTH MILONIGANJ WARD,
            JABALPUR (MADHYA PRADESH)

      2.    NAGESH KUMAR JAISWAL S/O SHRI SHARDA
            PRASAD JAISWAL, AGED ABOUT 30 YEARS,
            HOUSE NO. 581 SOUTH MILAONIGANJ WARD,
            JABALPUR (MADHYA PRADESH)

                                                        .....RESPONDENTS

      (BY SHRI RAJENDRA GUPTA-ADVOCATE)


1
                                                                                        SA NO.314/2017

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       This petition coming on for hearing this day, the court passed the
following:



                                           JUDGMENT

Heard on the question of admission.

This appeal is admitted for final hearing on the following substantial question of law :

"Whether learned first appellate court has committed illegality in not condoning the delay of 18 days in filing of the regular civil appeal ?"

With the consent of parties, this second appeal is heard finally.

This second appeal has been filed by the appellant/defendant/tenant challenging the order dated 04.02.2017 passed by Additional District Judge, Jabalpur, in MJC No.456/2016, whereby regular civil appeal filed by appellant/defendant challenging the judgment and decree of eviction dated 13.07.2016 passed by XV Civil Judge Class-I, Jabalpur in civil suit no.11- A/2015, has been dismissed on the ground of limitation holding the appeal to be barred by 18 days.

2. The suit in question was filed by the respondents/plaintiffs for eviction on the grounds available under section 12(1)(a),(c),(e),(f)&(g) of the M.P. Accommodation Control Act, 1961 (in short the 'Act') which after recording evidence of the parties was decreed by learned trial court on the ground under section 12(1)(e)&(f) of the Act for composite need of the plaintiffs.

SA NO.314/2017

3. Learned counsel for the appellant/defendant submits that after passing of the judgment and decree by learned trial court on 13.07.2016, the appellant fell ill and due to typhoid, he was on bed rest and could not contact to the counsel for filing the civil appeal against the judgment and decree dated 13.07.2016. He submits that learned first appellate court vide impugned order has taken harsh view on the ground that the prescription slip available on record does not mention the name of doctor and seal, nor any medical bill has been produced in support of the said prescription slip to show that any medicines were purchased by the appellant/defendant for the treatment. Learned counsel for the appellant submits that because the medical prescription was written by the doctor of Seth Govind Das (Victoriya) Hospital, Jabalpur therefore, there is no fault on the part of the appellant/defendant and the same being supported by medical certificate should have been relied upon by learned first appellate court and in presence of the same, there was no reason to dismiss the application for condonation of delay of only 18 days.

4. Learned counsel for the respondents/plaintiffs submits that just with a view to protract the litigation, the defendant/appellant preferred the civil appeal before first appellate court with delay and he was not suffering from any illness and the appeal was filed after manipulating the medical documents on false grounds and he prays for dismissal of the second appeal.

5. Heard learned counsel for the parties and perused the record.

6. Impugned order passed by learned first appellate court shows that the appeal was filed with the delay of 18 days only and the application was supported by affidavit as well as the prescription slip issued by doctor of Seth Govind Das (Victoria) Hospital, Jabalpur which shows that the appellant was suffering from typhoid and the another document is a certificate issued by

SA NO.314/2017

Medical Officer of Victoria Hospital, Jabalpur and for non-mentioning the name and seal of the doctor on the prescription slip, the appellant cannot be blamed and if in the opinion of learned first appellate court, the documents were suspicious, then the learned first appellate court should have conducted inquiry into the matter by fixing the case for evidence.

7. In absence of any documentary evidence in rebuttal, this court is of the considered opinion that learned first appellate court has committed illegality in not condoning the delay of 18 days only which was based on illness supported by medical documents issued by doctor of government hospital.

8. In view of the aforesaid, the second appeal deserves to be and is hereby allowed and the matter is remanded back to learned first appellate court to decide the first appeal on merits, certainly within a period of two months from the date of receipt of copy of order of this court and after receipt of relevant records.

9. With the aforesaid observations, this second appeal is allowed and disposed off.

10. Registry of this Court is directed to send back the records of Courts below immediately without any delay.

(DWARKA DHISH BANSAL) JUDGE

ss

Digitally signed by SWETA SAHU Date: 2022.09.19 18:07:37 +05'30'