The Managing Director vs Dilip Gunde The Then Accountant
2023 Latest Caselaw 12737 MP

                                                                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
                                                MISC. PETITION No. 3544 of 2018

                           BETWEEN:-
                           THE MANAGING DIRECTOR, JILA VANOPAJ SANGH
                           SAHKARI MARYADIT, SOUTH BETUL ,DISTT. BETUL
                           M.P. (MADHYA PRADESH)

                                                                                                 .....PETITIONER
                           (BY SHRI DEEPAK AWASTHI- ADVOCATE)

                           AND
                           DILIP GUNDE, THE THEN ACCOUNTANT, JILA VANOPAJ
                           SANGH SAHKARI MARYADIT, BETUL RETIRED
                           ASSISTANT GRADE-I, TAH. AND DISTT. BETUL M.P.
                           (MADHYA PRADESH)

                                                                                             .....RESPONDENT
                           (BY SHRI ANKIT SAXENA- ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                                 ORDER

Though this matter is listed today for orders on admission, however, with the consent of learned counsel for the parties it is heard finally.

2. This petition under Article 227 of the Constitution has been filed by the petitioner against order dated 29.1.2018 (Annexure-P/1) passed by M.P.State Cooperative Tribunal, Bhopal (hereinafter referred to as the "Tribunal") in Second Appeal No.07/2017 whereby the appeal preferred against the order of Joint Registrar, Cooperative Societies, Naramadapuram has been rejected.

Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 10-08-2023 19:34:39

3. Facts, in brief, are that respondent while on deputation with the petitioner withdrawn Rs.15,88,206/- without following procedure. Therefore, petitioner after retirement of respondent asked for amount of interest from the respondent as he illegally utilized public money. The respondent raised a dispute before Deputry Registrar, Cooperative Societies, Betul. which was decided against the respondent vide order dated 14.7.2016. Thereafter, the respondent filed appeal being Case No.242/2016 before the Joint Registrar, Cooperative Societies. Hoshangabad, which was allowed and vide order dated 23.11.2016 (Annexure-P/2) and order of Deputy Registrar was set aside. Being aggrieved the petitioner preferred Second Appeal No.07/2017 under section

78(2) of M.P. Cooperative Societies Act, 1960 before the Tribunal on 19.1.2017. The Tribunal dismissed the second appeal being barred by 05 days as order challenged is dated 23.11.2016 and appeal has been preferred beyond prescribed period of 30 days on 19.1.2017.

4. Learned counsel for the petitioner has submitted that the Tribunal has taken very hyper-technical view as the delay was not inordinate and same ought to have been condoned.

5. Learned counsel for the respondent at the outset submits that he has not objection if the petition is allowed, but the Tribunal be directed to expeditiously decide the appeal on merits as the respondent has won from both the courts below.

6. Heard learned counsel for both the parties. From perusal of Annexure-P/2 dated 23.11.2016 it is seen that order of Deputy Registrar Cooperative Societies, Betul was set aside. Against order dated 23.11.2016 the Managing Director, Jila Vanopaj Sangh Sahakari Maryadit, Betul has filed

Signature Not Verified second appeal on 29.1.2017. The same has been dismissed on the ground that Signed by: RAJESH MAMTANI Signing time: 10-08-2023 19:34:39

appeal is allegedly delayed by 05 days because impugned order is dated 23.11.2016 and appeal has been filed on 19.1.2017.

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 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 Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 10-08-2023 19:34:39

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 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 Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 10-08-2023 19:34:39

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 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. Accordingly, after consideration of over all facts and circumstances and the submissions of learned counsel for the parties, this Court is of the view that delay of 05 days should have been condoned by the Tribunal. Accordingly, the delay in preferring the second appeal is condoned. The impugned order 29.1.2018 is set aside. The matter is remanded to the Tribunal with direction to decide the matter on merits as per law.

9. In the result, the petition stands disposed of. Let a copy of this order be sent to the Tribunal.

(AVANINDRA KUMAR SINGH) JUDGE RM

Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 10-08-2023 19:34:39