Smt. Amina Rayeen vs Gopal Gupta S/O Shri Babulal Gupta ...
2023 Latest Caselaw 9454 MP

                              1
 IN    THE      HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
                    ON THE 23 rd OF JUNE, 2023
                   MISC. APPEAL No. 5377 of 2022

BETWEEN:-
SMT. AMINA RAYEEN W/O SHRI NIZAM RAYEEN, AGED
ABOUT 51 YEARS, OCCUPATION: BUSINESS, R/O
SAMADHIYA COLONY KE GATE KE PASS TARAGANJ
LASHKAR, DISTRICT GWALIOR (MADHYA PRADESH)

                                                    .....APPELLANT
(BY SHRI ANMOL KHEDKAR - ADVOCATE)

AND
1.    GOPAL GUPTA S/O SHRI BABULAL GUPTA AGE 62
      YEARS OCCUPATION BUSINESS R/O GADVE KI
      GOTH LASHKAR GWALIOR M.P
      (a) SMT. MADHU GUPTA W/O LATE SHRI GOPAL
      GUPTA, AGED ABOUT 60 YEARS, OCCUPATION:
      BUSINESS R/O GADVE KI GOTH LASHKAR
      (MADHYA PRADESH)

      b) AMIT S/O LATE GOPAL GUPTA, AGED ABOUT 38
      YEARS

      c) JAI, AGED ABOUT 36 YEARS

      d) VIJAY AGED ABOUT 34 YEARS,

      e) AJAY, AGED ABOUT 31 YEARS

      f) TEEVRA, AGED ABOUT 26 YEARS,
      RESPONDENTS NO. (1) (b) TO (f) SONS OF LATE
      SHRI GOPAL GUPTA, R/O GADWE KI GOTH
      LASHKAR (MADHYA PRADESH)

2.    VIKAS DIXIT S/O RAJESH DIXIT, AGED ABOUT 32
      YEAR S, OCCUPATION: BUSINESS, R/O URMILA
      VIHAR SINDHI COLONY LASHKAR (MADHYA
      PRADESH)
                                    2
                                                           .....RESPONDENTS
(BY SHRI K.N.GUPTA, LEARNED SENIOR ADVOCATE WITH MS. AYUSHI
POPHLI - ADVOCATE )

      This appeal coming on for admission this day, the court passed the
following:
                                     ORDER

The appellant has filed this miscellaneous appeal under Order 43 Rule 1(t) of C.P.C. against the impugned order dated 27/10/2022 passed by 9th District Judge, Gwalior in MJC No.288/2020 by which the application filed by the appellant under Section 5 of Limitation Act alongwith application under Order 41 Rule 19 of C.P.C. have been dismissed.

The appellant filed an appeal against the judgment and decree dated

25/07/2018 passed against her by the Court of Fourth Civil Judge, Class-I Gwalior, by which the suit of the respondents against the appellant was decreed. An appeal was filed before 9th District Judge, Gwalior vide Civil Appeal No.130/2018, which was dismissed for want of Court fee and also non-appearance of the appellant on 4/7/2019. The appellant filed an application under Order 41 Rule 19 read with 151 of C.P.C. for restoration of her appeal along with an application under Section 5 of Limitation Act for condonation of delay caused in filing the above application.

According to the appellant, she is a Muslim Parda Nashin lady. The entire proceedings of the Court were being contested and proceeded by her husband, and therefore, she was having no knowledge about Court proceedings. Her husband was facing a criminal trial for the offence under Section 138 of N.I. Act in which he was convicted and sentenced for 02 years RI. Because her husband was in jail, he could not deposit the Court fee of the appeal filed by her and ultimately appeal was dismissed on 4/7/2019. On

25/02/2020, on meeting with her husband in jail, she for the first time came to know about the dismissal of the appeal. Thereafter, lock-down was declared in entire nation due to Covid-19 pandemic on 23rd March, 2020. After relaxation in the lock-down, the appellant immediately filed the application under Order 41 Rule 19 of C.P.C. for restoration of her first appeal and also the application for condonation of delay under Section 5 of Limitation Act.Therefore, her applications be allowed and her appeal be decided on its own merits.

The applications were vehemently opposed by the respondents. After perusal of the record of the case and the applications filed by the appellant, the lower Court passed the impugned order.

Being aggrieved thereby, this appeal has been filed mainly on the ground that the impugned order suffered from grave illegality and arbitrariness. The appellant has explained the delay in filing of the application very well. The appellant is an illiterate housewife andwas not aware of the proceedings of the Court. The appellant being a Muslim Parda Nashin lady did not look after the legal matters and the proceedings were being looked after and handled by her husband only. Her husband was struggling for arranging the money but when he failed to arrange the money, then he surrendered in jail on 13/01/2020.

The respondents have opposed the prayer and supported the impugned order and prayed for dismissal of this appeal.

Heard learned counsel for the parties and perused the record of the Court below.

It is an admitted fact that there is a delay of five and half months on the part of the appellant in filing the application for restoration of her first appeal. It is settled law that the Court must apply liberal approach in such matters and as far as possible, adjudication be done on merits and litigation should not be

terminated by default of either of the parties. In other words, the dispute should be decided on merits rather than on technicalities and substantial justice. The Supreme Court in the case of Robin Thapa Vs. Rohit Dora reported in 2019 (7) SCC 359 has held that the cause of justice does require that as far as possible, adjudication be done on merits and litigation should not be terminated by default of either of the parties. In other words, the dispute be decided on merits rather than on technicalities and substantial justice is required to be done. The reasons for delay shown by the appellant cannot be termed as baseless. On the other hand, they are bona fide. Irreparable loss and injustice is likely to be caused, if the appellant is not being given opportunities to contest her appeal on merits as the appellant cannot be blamed for this delay as her case was being contested and proceeded by her husband. Thus, the lower Court has acted wrongly in dismissing the applications of the appellant.

So far as the judgment of Apex Court relied upon by the counsel for respondents in the matter of Sabarmati Gas Limited Vs. Shah Alloya Limited, 2023 (3) SCC 229 and Secunderabad Cantonment board Vs. B.Ramachandraiah & Sons, (2021) 5 SCC 705 are concerned, same move in different factual realm and are not applicable in the facts and circumstances of the present case. The appellant cannot be blamed for the delay and non- compliance of the Court's order.

Looking to the facts and circumstances of the case, the application filed for condonation of delay of restoration application and the restoration application filed by the appellant deserves to be allowed; however with cost, in the interest of justice and accordingly while allowing this appeal, impugned order dated 27/10/2022 passed by 9th District Judge, Gwalior in MJC

No.288/2020 is set aside and applications filed by appellant under Order 41 Rule 19 of C.P.C. and application under Section 5 of Limitation Act are hereby allowed subject to payment of deficit Court fees alongwith cost of Rs. 2,500/- by appellant to respondents on next date of hearing before the Court below.

Accordingly, Regular Civil Appeal No. 130/2018 is restored to its original number and learned First Appellate Court is directed to decide this appeal on merits after providing adequate opportunity of hearing to the parties. Appellate Court shall decide the appeal strictly in accordance with evidence which had come on record without getting influenced or prejudiced by this order.

Appeal stands allowed and disposed of.

Parties to appear before the appellate Court on 10th July, 2023.

(ROOPESH CHANDRA VARSHNEY) JUDGE JPS/-

Digitally signed by JAI PRAKASH SOLANKI

JAI PRAKASH DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4cfb9e 38ce14fcbb05b9522a,

SOLANKI pseudonym=560BC50AD082B9BE54EE290EC8CB2193780D8357 , serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01433EB D48AE4F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2023.06.27 13:14:35 +05'30'