Madhya Pradesh High Court
Kusum Bai vs Mangal Jeet on 8 August, 2023
Author: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 8 th OF AUGUST, 2023
SECOND APPEAL No. 594 of 2011
BETWEEN:-
1. KUSUM BAI W/O LATE HANUMANT SINGH, AGED
ABOUT 48 YEARS, R/O KASBA GAIRATGANJ
DISTT. RAISEN (MADHYA PRADESH)
2. KAMAL KANT S/O LATE HANUMAT SINGH, AGED
ABOUT 31 YEARS, R/O KASBA, GAIRATGANJ,
DISTT. RAISEN (MADHYA PRADESH)
3. MS.RAKHI D/O LATE HANUMAT SINGH, AGED
ABOUT 24 YEARS, R/O KASBA, GAIRATGANJ,
DISTT. RAISEN (MADHYA PRADESH)
4. RAKSHA D/O LATE HANUMAT SINGH, AGED
ABOUT 23 YEARS, R/O KASBA, GAIRATGANJ,
DISTT. RAISEN (MADHYA PRADESH)
5. RAHUL S/O LATE HANUMAT SINGH, AGED ABOUT
24 YEARS, R/O KASBA, GAIRATGANJ, DISTT.
RAISEN (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ISHTIYAQ HUSSAIN-ADVOCATE)
AND
1. MANGAL JEET S/O MOOL CHAND, (SINCE
DECEASED THROUGH LEGAL HEIRS)
(A) MUNNALAL GAUR, AGED ABOUT 45 YEARS,
S/O LATE MANGAL JEET, R/O GAIRATGANJ
DISTT. RAISEN (MADHYA PRADESH)
(B) GHANSHYAM GAUR, AGED ABOUT 50 YEARS,
R / O GAIRATGANJ DISTT. RAISEN (MADHYA
PRADESH)
(C) KRISHNA BAI, AGED ABOUT 40 YEARS, WIFE
OF LATE NARAMADA PRASAD, R/O GAIRATGANJ
DISTT. RAISEN (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
2
C O L L E C T O R RAISEN, DISTRICT RAISEN
(MADHYA PRADESH)
3(A). KASHI BAI W/O LATE BABULAL, AGED ABOUT 73
YEARS, GAIRATGANJ, DISTT. RAISEN (MADHYA
PRADESH)
3(B). HARI KRISHNA S/O LATE BABULAL, (SINCE
DECEASED THROUGH LEGAL HEIRS)
(i) PAPPU S/O LATE HARI KRISHNA AGED ABOUT
32 YEARS, R/O GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
(ii) SANJU S/O LATE HARI KRISHNA AGED ABOUT
29 YEARS, R/O GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
(iii) PINTU S/O LATE HARI KRISHNA AGED
ABOUT 25 YEARS, R/O GAIRATGANJ, DISTT.
RAISEN (MADHYA PRADESH)
(iv) MS.LEELA BAI S/O LATE HARI KRISHNA
AGED ABOUT 55 YEARS, R/O GAIRATGANJ, DISTT.
RAISEN (MADHYA PRADESH)
3(C). VISHNU S/O LATE BABULAL, AGED ABOUT 53
YEARS, GAIRATGANJ, DISTT. RAISEN (MADHYA
PRADESH)
3(D). RAM SEVAK S/O LATE BABULAL, AGED ABOUT 53
Y E A R S , R/O GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
3(E). MS.LAXMI S/O LATE BABULAL, AGED ABOUT 51
Y E A R S , R/O GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
3(F). DEERAJ SINGH S/O LATE BABULAL, AGED ABOUT
49 YEARS, R/O GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
3(G). SHIBBU @ SHIVLAL S/O LATE BABULAL, AGED
ABOUT 47 YEARS, R/O GAIRATGANJ, DISTT.
RAISEN (MADHYA PRADESH)
3(H). MS.VIDYA BAI D/O LATE BABULAL, AGED ABOUT
45 YEARS, R/O SEVANIYA, BHADBHADA, BHOPAL
(MADHYA PRADESH)
3(I). MS.HEERA BAI W/O HARIRAM, AGED ABOUT 55
YEARS, R/O VILLAGE DEORI, TAH. GAIRATGANJ,
DISTT. RAISEN (MADHYA PRADESH)
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
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3(J). MS.GUDDI BAI D/O LATE BABULAL, AGED ABOUT
45 YEARS, R/O VILLAGE SIHORA, TAH.
GAIRATGANJ, DISTT. RAISEN (MADHYA
PRADESH)
4. KALYAN SINGH S/O MOOL CHAND, (SINCE
DECEASED THROUGH LEGAL HEIRS)
(i) OMPRAKASH S/O KALYAN SINGH AGED
ABOUT 52 YEARS, R/O WARD NO.6, KISANI
MOHALL, TAH. GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
(ii) RAMSWAROOP S/O KALYAN SINGH AGED
ABOUT 50 YEARS, R/O WARD NO.6, KISANI
MOHALL, TAH. GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
(iii) KAMLESH, S/O KALYAN SINGH AGED ABOUT
47 YEARS, R/O WARD NO.6, KISANI MOHALL, TAH.
GAIRATGANJ, DISTT. RAISEN (MADHYA
PRADESH)
(iv) INDERJEET S/O KALYAN SINGH AGED ABOUT
41 YEARS, R/O WARD NO.6, KISANI MOHALL, TAH.
GAIRATGANJ, DISTT. RAISEN (MADHYA
PRADESH)
(v) DEEPAK S/O KALYAN SINGH AGED ABOUT 52
YEARS, R/O WARD NO.6, KISANI MOHALL, TAH.
GAIRATGANJ, DISTT. RAISEN (MADHYA
PRADESH)
(vi) BHAGGO BAI W/O KALYAN SINGH AGED
ABOUT 52 YEARS, R/O WARD NO.6, KISANI
MOHALL, TAH. GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
(vii) MUNNI BAI D/O KALYAN SINGH WIFE OF
GOPAL, AGED ABOUT 52 YEARS, R/O NANDANI
NAGAR, TAH. GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
(viii) SUDHA BAI, W/O BAIJNATH, D/O KALYAN
SINGH AGED ABOUT 38 YEARS, R/O KISANI
MOHALL, TAH. GAIRATGANJ, DISTT. RAISEN
(MADHYA PRADESH)
(ix) SITA BAI W/O RADHE, D/O KALYAN SINGH
AGED ABOUT 36 YEARS, R/O VILLAGE BASA, TAH.
& DISTT. VIDISHA (MADHYA PRADESH)
5(A). KERA BAI W/O LATE LAXMI CHAND, AGED
ABOUT 69 YEARS, KISANI MOHALLA,
GAIRATGANJ, DISTT. RAISEN (MADHYA
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
4
PRADESH)
5(B). KAILASH S/O LATE LAXMI CHAND, AGED ABOUT
29 YEARS, KISANI MOHALLA, GAIRATGANJ,
DISTT. RAISEN (MADHYA PRADESH)
5(C). RAM NARAYAN S/O LATE LAXMI CHAND, AGED
ABOUT 32 YEARS, KISANI MOHALLA,
GAIRATGANJ, DISTT. RAISEN (MADHYA
PRADESH)
5(D). RAJU S/O LATE LAXMI CHAND, AGED ABOUT 34
YEARS, KISANI MOHALLA, GAIRATGANJ, DISTT.
RAISEN (MADHYA PRADESH)
5(E). DHAN BAI D/O LATE LAXMI CHAND, W/O
RAGHUVEER, AGED ABOUT 41 YEARS, PISURA,
DISTT. DATIA (MADHYA PRADESH)
5(F). MS.ARTI W/O DHEERAJ SINGH, D/O LATE LAXMI
CHAND, AGED ABOUT 29 YEARS, R/O KARHOLA,
TAH. BEGUMGANJ, DISTT. RAISEN (MADHYA
PRADESH)
.....RESPONDENTS
(BY NONE )
Reserved on : 02.08.2023
Pronounced on: 08.8.2023
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This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, JUSTICE AVANINDRA KUMAR SINGH
passed the following:
JUDGMENT
This second appeal has been filed by the appellant/plaintiffs under
section 100 of CPC against order dated 05.5.2011 passed by the Additional
District Judge (Fast Tract Court), Begumganj in Civil Appeal No.27-A/2007
whereby their appeal against judgment and decree dated 11.9.2007 passed in
Civil Suit No.19-A/2005 has been dismissed on the ground that there is delay of
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
19 days in preferring the appeal.
2. Facts of the case, in brief, are that appellants as plaintiffs filed Civil
Suit No.19-A/2005 against the respondents/defendants in the Court of Civil
Judge Class-I, Begumganj, District Raisen seeking relief of declaration and
permanent injunction. In the suit, the defendants also filed counter claim. By
judgment and decree dated 11.9.2007 the trial Court dismissed the suit
alongwith the counter claim.
3. Against judgment and decree passed by the trial Court the
appellants/plaintiffs preferred first appeal before the Additional District Judge
(Fast Track Court), Begumganj, District Raisen being Civil Appeal No.27-
A/2007. Since the aforesaid appeal was filed with delay of 19 days, therefore,
an application under section 5 of the Limitation Act, 1963 was moved for
condonation of delay in preferring the appeal which was supported by medical
certificate issued by the doctor. In the above first appeal, the respondent
No.1/defendant filed cross-objection under Order 41 Rule 22 of CPC on
13.2.2008. The lower appellate Court by impugned order dated 05.5.2011
rejected the application filed under section 5 of the Limitation Act for
condonation of delay, and consequently the first appeal stood dismissed as
barred by time and directed for continuation of appeal in-so-far as cross-
objection filed by the respondent/defendant is concerned.
4. Being aggrieved by the impugned order passed by the lower
appellate Court the appellants/plaintiffs have preferred instant appeal. Learned
counsel for the appellant submitted that the appeal preferred before the lower
appellate Court was time barred by 19 days and it was filed alongwith medical
certificate copy issued by the Doctor, therefore, delay ought to have been
condoned and appeal should not have been dismissed, when the same was
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
pending in respect of counter claim. Hence, prayer has been made to set aside
the impugned order passed by the lower appellate Court.
5. On 19.5.20211 this appeal was admitted on the following substantial
question of :-
"Whether learned First Appellate Court was justified in dismissing the
appeal of appellants as barred by time when sufficient ground explaining
the delay of eight days was shown by the appellants?"
6. Heard the learned counsel for the appellants. Perused the record, in
the light of appeal. In view of this Court, looking to the grounds urged in appeal
the delay of 19 days should have been condoned by the first appellate Court,
because perusal of order of the Court dated 05.5.2011 reflects that it has
observed that medical certificate was produced, in which, it is mentioned that
patient was advised to take rest for 15 days, but it is not clear whether the
Doctor was heart specialist or not. Other papers regarding medical treatment
have not been produced. Hence, the application was rejected by the lower
appellate Court on account of non-condonation of delay.
7. The Apex Court in the case of Raheem Shah and another Vs.
Govind Singh and others, 2023 Live Law (SC) 572 has laid down as
follows:-
"3. It is in that light, the appellants are before this Court in this
appeal. At the outset, having taken note that the contention in the appeal
before the lower Appellate Court was that the judgment was not in the
knowledge of the appellants herein, that aspect of the matter was required to
be kept in view by the lower Appellate Court since the appellants in fact had
not taken effective part except filing written statement. When there was delay
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
of only 52 days in filing the appeal and furthermore when the parties were
litigating with regard to the right over immovable properties, the substantial
rights were to be decided between the parties. The delay could have been
condoned and the appeal could have been decided on merits.
4. This Court in the case of Collector, Land Acquisition, Anantnag v.
Mst. Katiji, (1987) 2 SCC 107 has held as hereunder:
"The legislature has conferred the power to condone delay by enacting
Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to
do substantial justice to parties by disposing of matters on 'merits'. The
expression 'sufficient cause' employed by the legislature is adequately elastic
to enable the courts to apply the law in a meaningful manner which
subserves the ends of justice-that being the life-purpose for the existence of the
institution of courts. It is common knowledge that this Court has been making
a justifiably liberal approach in matters instituted in this Court. But the
message does not appear to have percolated down to all the other courts in
the hierarchy. And such a liberal approach is adopted on principle as it is
realized that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal
late.
2. Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and cause of justice being defeated. As
against this when delay is condoned the highest that can happen is that a
cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a
pedantic approach should be made. Why not every hour's delay, every
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
second's delay? The doctrine must be applied in a rational common sense
pragmatic manner.
4. When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be preferred for the
other side cannot claim to have vested right in injustice being done because of
a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of mala fides. A litigant does
not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its
power to legalize injustice on technical grounds but because it is capable of
removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was
sufficient cause for condoning the delay in the institution of the appeal."
5. The above decision expressing the intention of justice oriented
approach percolating down to all the courts was rendered nearly three
decades ago but unfortunately the case on hand demonstrates the pervading
insensitive approach, which apart from continuing the agony of the litigants
concerned has also unnecessarily burdened the judicial hierarchy which after
going through the entire process will have to set the clock back, at this distant
point in time and prolong their agony. If only the court concerned had been
sensitive to the justice oriented approach rather than the iron-cast technical
approach, the litigation between the parties probably would have come to an
end much earlier after decision on the merits of their rival contention.
6. If that be the position, the very manner in which the lower
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
Appellate Court has dismissed the appeal on the ground of delay when the
delay was not inordinate is not justified and the High Court was also not
justified in dismissing the appeal only on the ground that there was no
question of law."
8. Taking cue from the above judgment of the Apex Court and looking to the
facts of the case, this Court is of considered opinion that if the first appellate
Court had found the certificate not to be satisfactory it was always open for the
Court to call the Doctor and record evidence, but that has not been done.
Therefore, considering the fact, in particular that original civil suit is more than
18 years old, therefore, remanding this case to enquire about the certificate of
doctor would only aid to the woes of the parties, therefore, the substantial
question of law is answered in negative. The first appellate Court was not
justified in dismissing the appeal as barred by time, when sufficient ground
explaining the delay was shown by the appellants, without enquiry.
9. In the result, the instant appeal is allowed. The impugned order dated
05.5.20211 passed by First Appellate Court is set aside. The delay in filing the
appeal is condoned. The matter is remanded to the first appellate Court to
decide the appeal on merits as per law.
(AVANINDRA KUMAR SINGH)
JUDGE
RM
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-08-2023
19:34:39
