Union Of India vs Late Nafeesa
2023 Latest Caselaw 2159 MP

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                                                      M.P. No.3489/2019


        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA

                 ON THE 7th OF FEBRUARY, 2023

                 MISC. PETITION No. 3489 of 2019

BETWEEN:-
   UNION OF INDIA GENERAL MANAGER WESTERN RAILWAY,
1.
   CHURCHGATE, MUMBAI (MAHARASHTRA)
   DIVISIONAL RAILWAY MANAGER WESTERN RAILWAY RATLAM
2.
   (MADHYA PRADESH)
                                                  .....PETITIONER
(SHRI H.Y. MEHTA WITH SMT. SWATI MEHTA, LEARNED COUNSEL
FOR THE PETITIONER.)

AND
   LATE NAFEESA W/O ALIHUSSAIN RAVTIWALA, AGED ABOUT 58
1. YEARS, OCCUPATION: HOUSEWIFE 38, KALIMI COLONY,
   RATLAM (MADHYA PRADESH)
   SMT. SHARIFA BAI W/O SAIFFUDDINJI RAVTIWALA, AGED ABOUT
2. 63 YEARS, OCCUPATION: HOUSEWIFE KALIMI COLONY,
   RATLAM,. (MADHYA PRADESH)
   ASGAR ALI S/O ALIHUSSAIN, AGED ABOUT 38 YEARS, 38 KALIMI
3.
   COLONY, RATLAM, (MADHYA PRADESH)
    DURIA W/O ASJAR ALI KALIMI9 COLONY, RATLAM (MADHYA
4.
    PRADESH)
                                                .....RESPONDENTS
(NONE FOR THE RESPONDENTS.)


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

The petitioner, Western Railway has filed the present petition being aggrieved by order dated 26.4.2019 passed by learned Additional District Judge, Ratlam in Civil Regular Appeal

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M.P. No.3489/2019

No.38/2019.

Facts of the case in brief are that, Smt. Sharifa Bai and Smt. Nafisa Bai filed a civil suit against the present petitioner for declaration of title and permanent injunction in the year 2003. Vide judgment dated 31.1.2011, learned Civil Judge dismissed the suit. Being aggrieved by the dismissal of the suit, only Smt. Nafisa Bai preferred Civil Regular Appeal before the District Judge, Ratlam.

During pendency of the appeal, Smt. Nafisa Bai died on 12.10.2016. The legal heirs i.e. son and daughter-in-law of Smt. Nafisa Bai filed applications under Order 22 Rule 3; under Order 22 Rule 9 of the C.P.C.; and application u/s. 5 of the Limitation Act on 2.11.2018. The present petitioner opposed all the three applications filing reply that there is inordinate delay of two years against the limitation of 90 days, therefore, the applications are liable to be dismissed with costs.

Vide order dated 26.4.2019, learned 4 th Additional District Judge has allowed all the three applications with costs of Rs.2,000/-. Being aggrieved by the aforesaid order, the petitioner, Western Railway has filed the present petition.

Vide order dated 16.8.2019 this Court while issuing notice to the respondents has stayed the further proceedings in the appeal and since then, the proceedings are held up.

Learned counsel for the petitioner submits that the learned first appellate Court has mechanically allowed all the applications on behalf of the legal heirs of Nafisa Bai and there is inordinate delay of two years in filing those applications and no explanation has been given by the legal heirs of in the applications.

After having heard the learned counsel for the petitioner, I

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M.P. No.3489/2019

have perused the material available on record.

Nafisa Bai was contesting the suit since 2003 and the suit was dismissed in the year 2011 and thereafter appeal was preferred. She died on 12.10.2016. Her legal heirs who came to know about filing of the appeal, filed the aforesaid applications for substitution of their names in place of Nafisa Bai. Since there was a delay in filing the applications, they also filed an application u/s. 5 of the Limitation Act. There is a provision for setting aside the abatement by condoning the delay if the reasons are bona fide. The Court should adopt a lenient view while considering the said applications. In the case of Banwarilal (Dead) through legal heirs V/s. Balbir Singh : (2016) 1 SCC 607 the apex Court has held that Order 22 Rule 3, 4 are not penal in nature and it should be considered if sufficient reasons are mentioned. Learned First Appellate Court has considered the applications on merit and found appropriate to allow the applications by imposing cost. The proceedings in the First Appellate Court are held up since 2019, otherwise the appeal itself would have been finally long back. No case for interference is made out.

Accordingly, this petition is dismissed.

No order as to costs.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.02.09 16:40:32 +05'30'