Madhya Pradesh High Court
Yaswant Kumar Patel vs Jabalplur Development Authority on 2 September, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 2 nd OF SEPTEMBER, 2023
MISC. PETITION No. 5713 of 2019
BETWEEN:-
YASWANT KUMAR PATEL S/O LATE SHRI D.S. PATEL,
AGED ABOUT 70 YEARS, OCCUPATION: ADVOCATE R/O
VIKASH NAGAR JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANJAY SANYAL - ADVOCATE )
AND
1. JABALPLUR DEVELOPMENT AUTHORITY THR.
THE CHIEF EXECUTIVE OFFICER CIVIC CENTRE
MARHATAL JABALPUR (MADHYA PRADESH)
2. THE PRESIDENT JAGDAMBA GRAH NIRMAN
SAHKARI SAMITI DISTT-JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SANJIV KUMAR MISHRA - ADVOCATE FOR RESPONDENT NO.1)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Article 227 of Constitution of India has been filed
against the order dated 05.10.2019 passed by Fourteenth Additional District
Judge, Jabalpur in MJC No.62/2019 by which application filed by the
respondent no.1 under section 5 of Limitation Act for condonation of delay
was allowed and the delay of 892 days was condoned.
2. It is submitted by counsel for petitioner that the judgment in question
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Signed by: TRUPTI GUNJAL
Signing time: 05-09-2023
11:38:55
was passed by Second Civil Judge, Class-II on 22.07.2016 in Civil Suit No.9-
A/2014; whereas the appeal was filed with delay of 892 days along with an
application under section 5 of Limitation Act. In the said application it was
mentioned that by mistake the file was kept along with the files of decided
cases, therefore, the appeal could not be filed within the period of limitation and
only after the copy of judgment was filed by the plaintiffs in pending civil suits,
the authorities came to know about this judgment and ultimately the file was
searched out and direction was given to prefer an appeal.
3. This application was opposed by the petitioner by filing his written
reply.
4. The appellate Court by order dated 05.10.2019 passed in MJC
No.62/2019 has condoned the delay.
5. Being aggrieved by the said order, it is submitted by counsel for
petitioner that after the judgment dated 22.07.2016 was passed, respondent no.1
had obtained a certified copy of the said judgment and, therefore, the stand
taken by respondent no.1 that by mistake the appeal could not be filed within
the period of limitation, is misconceived and delay should not have been
condoned by the appellate Court.
6. Per contra, it is submitted by Shri Mishra that it is true that certified
copy of judgment dated 22.07.2016 was obtained by the counsel for
respondent no.1 and it was also forwarded to the department, which is evident
from notesheet dated 10.09.2016 but thereafter the file went missing and by
mistake it was kept in the file of decided cases. Accordingly, the proposal for
filing appeal could not be processed. Later on as soon as the authorities came
to know about the aforesaid judgment on account of filing of said copy in
pending civil suit, a direction was given to take action against the person, who
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Signed by: TRUPTI GUNJAL
Signing time: 05-09-2023
11:38:55
was responsible for delay. It is submitted by Shri Mishra that since the person,
who was responsible for delay has retired, therefore, no action has been taken.
7. Considered the submissions made by counsel for the parties.
8. From the notesheet, which was provided by counsel for respondent
no.1, it is clear that copy of judgment dated 22.07.2016 along with the opinion
of the counsel for respondent no.1 was received sometimes in the month of
September, 2016 and the same was taken on notesheet dated 10.09.2016. On
14.09.2016 the Land Acquisition Officer, JDA had opined for filing of appeal.
Thereafter, the file was marked to CEO but in the mid way the file went missing.
According to the respondent no.1, the person who was primarily responsible
for misplacement of file has already retired, therefore, no action has been taken
against him.
9. Be that whatever it may be.
10.One thing is clear that when the Land Acquisition Officer opined for
filing of appeal, then the file went missing. Whether it was a deliberate act or it
was a negligent act, is not to be considered by this Court. But one thing is clear
that file went missing and no action was taken.
11. This Court cannot lose sight of fact that the departments are to
function through various authorities working in the said department. A failure
either on account of negligence or deliberate act, will destroy the valuable rights
of the department of State Government. It is for the authority to put its
department in proper manner. Unfortunately in the present case, respondent
no.1 has tried to run away from his responsibility to correct the things by saying
that person, who was responsible for misplacement of file, has retired and
therefore, no action can be taken.
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Signed by: TRUPTI GUNJAL
Signing time: 05-09-2023
11:38:55
12. But one thing is clear that the department had admitted that the
misplacement of file was not proper and it should not have taken place.
13. It is well established principle of law that the Court should always try
to decide the cases on merits instead of dismissing them on technical grounds.
Furthermore, in a case where the file is misplaced on account of keeping in the
bundle of disposed cases, may be deliberate act on the part of an employee
working in the department or it may be a case of negligence. But because of
lapses on the part of one person, the department or the public at large, cannot
be made to suffer. However, the department can also not be allowed to
continue with its lethargic attitude of dealing with the matters where public
property or public money is involved.
14. It is further submitted by counsel for respondent no.1 that identical
appeals arising out of the same dispute, are already pending for final
adjudication before the appellate authority. Once the appeals involving the same
questions of fact and law, are already pending then no useful purpose would be
served by rejecting the application filed under section 5 of Limitation Act.
15. Furthermore, once the appellate Court has exercised its discretion in
favour of respondent no.1, then the same should not be disturbed unless and
until the circumstances require.
16. Under these facts and circumstances of the case, this Court is of the
considered opinion that the appellate Court did not commit any mistake by
allowing the application filed under section 5 of Limitation Act, however, the
appellate Court should have allowed the said application on payment of cost.
17. This Court has already come to a conclusion that there was a
lethargic attitude on the part of a person, who was handling the file as well as
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the lethargic attitude on the part of department in dealing with such persons.
Signed by: TRUPTI GUNJAL
Signing time: 05-09-2023
11:38:55
18. Accordingly, the order dated 05.10.2019 passed by Fourteenth
Additional District Judge, Jabalpur in MJC No.62/2019 is hereby modified.
The application filed by respondent no.1 under section 5 of Limitation act is
allowed with cost of Rs.50,000/- (Rupees Fifty Thousand) to be deposited by
CEO, JDA in the account of JDA for the use of general public.
19. The cost, so deposited, can be recovered by JDA from erring
officers but it shall not be reimbursed by the State Government. The cost be
deposited in the account of JDA within a period of 15 days from today and
CEO, JDA is directed to submit his report before the Registrar General of this
Court by 22.09.2023 along with the receipt.
20. With aforesaid observations, the petition is dismissed.
(G.S. AHLUWALIA)
JUDGE
TG /-
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 05-09-2023
11:38:55
