Ravindra Pandey vs Trisen Singh
2023 Latest Caselaw 538 MP

                               1           S.A. No.1233/2008



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 10th OF JANUARY, 2023
              SECOND APPEAL No. 1233 of 2008
BETWEEN:-

RAVINDRA PANDEY S/O S/O LATE SANT
PRASAD PANDEY, AGED ABOUT 52 YEARS,
R/O VILLAGE KANDRAKHEDA, PARIYAT
(PANAGAR)    DISTRICT     JABALPUR
PERMANENT ADDRESS - 14 SATYA BIHAR
GORAKHPUR     JABLAPUR     (MADHYA
PRADESH)



                                            .....APPELLANT
(BY SHRI D.K. SHARMA - ADVOCATE )

AND

1.    TRISEN SINGH S/O S/O GANGURAM,
      AGED ABOUT 57 YEARS, R/O WARD
      NO 7 VILLAGE KANDRAKHEDA,
      GRAM    PANCHAYAT     (PANAGAR)
      TEHSILD AND DISTRICT JABALPUR
      (MADHYA PRADESH)



2.    RAKESH PANDEY S/O SANT PRASAD,
      AGED ABOUT 55 YEARS, R/O 64, CIVIL
      LINE, NEAR POWER HOUSE, TEHSIL
      AND DISTRICT JABALPUR, (MADHYA
      PRADESH)



3.    VIRENDRA S/O LATE SANT PRASAD,
      AGED ABOUT 45 YEARS, R/O 64, CIVIL
      LINE, NEAR POWER HOUSE, TEHSIL
      AND DISTRICT JABALPUR, (MADHYA
      PRADESH)
                                                  2                             S.A. No.1233/2008



                                                                             .....RESPONDENTS
(BY SHRI GIRISH SHRIVASTAVA - ADVOCATE )
---------------------------------------------------------------------------------------------------------
Reserved on : 05.01.2023
Pronounced on: 10.01.2023
         This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, the Court pronounced the
following:

                                          JUDGMENT

1. This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 7-8-2008 passed by 2nd Additional District Judge, Jabalpur in Civil Appeal No. 07-A/2008 arising out of judgment and decree dated 18-10-2006 passed by 3rd Civil Judge Class 1, in Civil Suit No. 254-A/2003.

2. The facts necessary for disposal of present appeal in short are that the Appellants/Plaintiffs had filed a civil suit for eviction, arrears of rent, as well as expenses of notice. The said suit was dismissed by the Trial Court by impugned judgment and decree dated 18-10-2006, with a finding that although the Appellants are the owner of the property in dispute but the suit has been filed for eviction and arrears of rent, and the plaintiffs have failed to establish the landlord tenant relationship.

3. On 15-5-2008, the Appellants filed an appeal under Section 96 of CPC along with an application under Section 5 of Limitation Act. It was pleaded by the Appellants that the judgment and decree was passed by the Trial Court on 18-10-2006 and the mother of the Appellants, namely, Smt. Krishna bai was not well and She died on the very next day i.e., on 19-10- 2006. The mother of the Appellants namely Smt. Krishna bai was looking

after the suit and She was attending the dates and the Appellant no.1 Ravindra Pandey had merely gone to depose in the matter, therefore, he could not get the information regarding passing of judgment and decree by the Trial Court. It is submitted that on 3-5-2008, the respondent started raising new construction after demolishing the old one, therefore, the Appellants objected to it. Then he was informed by the respondent that the suit has already been dismissed. It was pleaded thereafter, he contacted his Counsel, who informed that the Suit has already been dismissed. It was pleaded that since, he was busy in performing last rites of his mother, and thereafter, forgot about the suit, therefore, the delay in filing the appeal may be condoned.

4. The First Appellate Court by the impugned order dated 7-8-2008, rejected the application for condonation of delay and consequently, dismissed the Civil Appeal as barred by time.

5. Being aggrieved by the impugned order/judgment and decree dated 7-8-2008, it is submitted that since, the mother of the Appellants was looking after the suit, therefore, the Appellants were not aware of the outcome of the suit. Thus, it is submitted that by adopting a lenient view, the delay in filing the appeal may be condoned.

6. Per contra, the Appeal is vehemently opposed by the Counsel for the Respondent and submitted that the Appellant No. 1 Ravindra Pandey, had appeared as a witness in the suit, and it is incorrect to say that the mother of the Appellants was looking after the suit.

7. The Appeal has been admitted on the following Substantial Question of Law :

"Whether the Lower Appellate Court has committed an error of law in dismissing the appeal filed by the appellant beyond the period of limitation."

8. Heard the learned Counsel for the Parties.

9. The Supreme Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another decided on 27th April 2000 in S.L.P. (C) No. 10653 of 1998 has held that liberal approach should be adopted as it is realised that Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshhold and cause of justice would be defeated. "Every day's delay must be explained" does not mean that a pedantic approach should be made and the doctrine must be applied in a rational manner. 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 and 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.

10. The Co-ordinate bench of this Court in the case of Salikram and others Vs. Keshav and others reported in 2012(1) MPLJ 93 has held that if some cause is shown for the delay, the Court should accept the same and merely of delay or on technicalities, the appeal should not be dismissed.

11. Accordingly, the facts of the present case would be considered in the light of the aforesaid judgments.

12. The solitary contention of the Counsel for the Appellants that since, their mother was looking after the suit, and the Appellant No. 1 Ravindra Pandey had merely appeared as a witness as well as the mother of the Appellants expired on the next date of judgment passed by the Trial Court, therefore, the Appellants were not aware of the judgment of the Trial Court.

13. However, from the ordersheets of the Trial Court, it is clear that the aforesaid ground raised by the Appellants is not correct. The Appellants had filed an application under Order 26 Rule 1 CPC for examination of the Plaintiff No.1 Krishna Devi on Commission which reads as under :

"1. That, the instant case is fixed today for recording plaintiff's evidence. Plaintiff Smt. Krishna Pandey is an old lady of 72 years. She is bed ridden for the last some years. She cannot move and stand without the support of two persons. Medical certificate is attached. She is therefore, unable to attend Court and give evidence, She is not in a position to stand for a long time in witness box.

2. In the above mentioned condition, it will not be possible to take the evidence of the plaintiff before the Hon'ble Court or in the witness box. It is, therefore, expedient in the interest of justice that some local Commissioner is appointed to record the evidence of the plaintiff at her residence. The plaintiff is ready to bear the expenses of the Commissioner."

14. The application for appointment of Commissioner for examination of Smt. Krishna bai was allowed and the plaintiff Krishna Devi was examined on Commission. Thus, it is clear that the defence taken by the Appellants, that it was Smt. Krishna Devi who was looking after the suit is incorrect

and false even to their knowledge, as Krishna Devi was bedridden and was not keeping well.

15. The Appellant No. 1 Ravindra Pandey had also appeared as a witness in the Trial Court. Thus, it is clear that in fact the Appellant No.1 Ravindra Pandey was looking after the suit and not Smt. Krishna Devi.

16. Thus, the cause shown by the Appellants that their mother was looking after the suit is incorrect and cannot be accepted.

17. It is the next contention of the Counsel for the Appellants that since, the plaintiff no.1 Smt. Krishna Devi expired on the next day of judgment passed by the Trial Court, therefore, the Appellants were busy in performing her last rites and thereafter forgot about the suit.

18. The Suit filed by the Appellants has been dismissed with a finding that although the appellants are the owner of the property in dispute, and suit has been filed for eviction and arrears of rent, but they have failed to establish the landlord tenant relationship.

19. Since, the suit was dismissed, therefore, the contention of the Appellants that they forgot about the suit after the death of their mother Smt. Krishna Devi may not be very convincing, but in case if too technical approach is adopted, then the Appellants would be deprived of challenging the findings given by the Trial Court. Even otherwise, the Appellants would not gain anything by deliberately not filing the appeal within the period of limitation.

20. Thus, in order to do complete justice, this Court is of the considered opinion, that the First Appellate Court should not have adopted a too

technical approach and should have allowed the application by awarding cost to the respondents.

21. Accordingly, the delay in filing the Appeal is hereby condoned with a cost of Rs. 15,000/-, to be deposited by the Appellants within a period of 45 days from today before the Appellate Court. The respondents shall be free to withdraw the same.

22. The Substantial Question of Law is answered in affirmative.

23. Ex consequenti, the order/judgment and decree dated 7-8-2008 passed by 2nd Additional District Judge, Jabalpur in Civil Appeal No. 07- A/2008 is hereby set aside.

24. The parties are directed to appear before the First Appellate Court on 1-2-2023 for further proceedings.

25. The Appeal succeeds and is Allowed accordingly.

(G.S. AHLUWALIA) JUDGE HS

Digitally signed by HEMANT SARAF Date: 2023.01.10 18:15:09 +05'30'