Kanhaiya Singh Shakya vs Babulal Kushwaha
2023 Latest Caselaw 249 MP

                                                              1
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                         FA No. 54 of 2018
                                        (KANHAIYA SINGH SHAKYA Vs BABULAL KUSHWAHA AND OTHERS)

                          Dated : 04-01-2023
                                Shri Rakesh Kumar Pandey - Advocate for appellant.

                                Shri Ankit Saxena - Advocate for respondents No.1 to 4.

Heard on I.A. No.184/2018, an application under section 5 and 14 of the Limitation Act for condonation of delay of 305 days.

It is submitted by learned counsel for the appellant that against the

impugned judgment and decree passed by the trial Court, the appellant had filed a review application, which was registered but ultimately it was dismissed by order dated 27.09.2017 and thereafter, the appeal has been filed on 03.01.2018. It is submitted by Shri Pandey that although this appeal was filed on 03.01.2018 and there is no explanation as to why the appeal was not filed immediately after dismissal of the review but it is prayed that looking to the controversy involved in the present case, a lenient view may be taken and delay in filing the appeal under section 96 of the CPC may be condoned.

The application is vehemently opposed by learned counsel for the

respondents. It is submitted that although the appellant may have some bonafide reason not to file an appeal during the pendency of a review application but he should have shown more vigilance by filing an appeal immediately after the dismissal of his review application. Since no reasons have been assigned for further delay, therefore, the appellant has failed to make out any sufficient cause for condonation of delay.

Heard the learned counsel for the parties.

It is well established principle of law that while deciding an application for Signature Not Verified Signed by: PANKAJ NAGLE Signing time: 1/5/2023 11:15:30 AM

condonation of delay, the Court must adopt a lenient view unless and until the delay is due to negligent act of the appellant. It is true that the appellant has not assigned any reason for not filing an appeal immediately after dismissal of his review application but during the course of arguments, it was submitted that the appellant was of the view that period of limitation would start from the date of dismissal of the review and, therefore, the appeal was not filed immediately after dismissal of the review.

Considering the submissions made by learned counsel for the parties, this Court is of the considered view that a lenient view can be adopted in the matter. However, the respondent has to be compensated for the same.

Accordingly, I.A. No.184/2018 is hereby allowed. The delay of 305 days in filing of appeal is hereby condoned subject to payment of cost of Rs.1,000/- to the respondents.

The cost will be deposited within a period of one month in the Registry of this Court and the respondents shall be entitled to withdraw the same.

Record of the Court below has been received.

The appeal being arguable is admitted for final hearing. Shri Saxena prays for and is granted three weeks time to file reply of I.A. No.183/2018, an application under Order 39 Rule 1 and 2 of the CPC.

List after three weeks.

(G.S. AHLUWALIA) JUDGE

pn

Signature Not Verified Signed by: PANKAJ NAGLE Signing time: 1/5/2023 11:15:30 AM