Punyalal vs State Of M.P.
2023 Latest Caselaw 15595 MP

                               1

     IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                           BEFORE

        HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH

                ON THE 22nd OF SEPTEMBER, 2023


                SECOND APPEAL NO. 1310 OF 1999

Between:-
1(A) SMT. SANTI SINGH, W/O LATE
PUNYALAL SINGH, AGED ABOUT 55 YRS,
OCCUPATION - AGRICULTURIST R/O
VILAGE TENDUHA, POST - BITHOLI,
THANA- AMILIHA, TEHSIL - SIHAWAL,
DISTRICT SIDHI (M.P.)

1(B) A. SAVITA SINGH, W/O LATE PUSHPRAJ
SINGH, AGED ABOUT 41 YEARS
1(B) B. ANKIT SINGH S/O LATE PUSHPRAJ
SINGH, AGED ABOUT 19 YEARS
1(B) C. ANKUL SINGH (MINOR) THROUGH
MOTHER, S/O LATE PUSHPRAJ SINGH
AGED ABOUT 17 YEARS

ALL ARE      RESIDENT AT     VILLAGE
TENDUHA,     POST   BITHOLI,   THANA
AMILIHA, TEHSIL SIHAWAL DISTRICT -
SIDHI (M.P.)

1(C) DHARMENDRA SINGH, S/O LATE
PUNYALAL SINGH, AGED ABOUT 25 YEARS,
OCCUPATION - AGRIULTURIST, R/O
VILLAGE TENDUHA, POST BITHOLI,
THANA    AMILIHA       TEHSIL SIHAWAL
DISTRICT- SIDHI (M.P.)

2. SHRI GUNRAJ SINGH, AGED 46 YEARS

3. SHRI UDAY RAJ SINGH, AGED 44 YEARS

4. SHRI SURYA PAL SINGH, AGED 40 YEARS

5(4A) SMT. DHANESRA SINGH W/O LATE
SURYA PAL SINGH, AGED ABOUT 48 YEARS
5(4B) RAJESH SINGH, S/O LATE SURYA PAL
SINGH,    AGED   ABOUT     27   YEARS,
                                 2

OCCUPATION - SERVICE IN J.P. CEMENT

5(4C) BEERESH SINGH, S/O LATE SURYA
PAL SINGH, AGED ABOUT 22 YEARS

5(4D) ARUN SINGH, S/O LATE SURYA PAL
SINGH, AGED ABOUT 18 YEARS

ALL THE LEGAL REPRESENTATIVES ARE
R/O VILLAGE TENDUA, POST BITAULI,
TEHSIL SIHPAL, DISTRICT - SIDHI (M.P.)

6. SHRI ANUJ PRATAP SINGH, AGED 25
YEARS

7. SMT. KAUSHALIYA, AGED 38 YEARS, D/O
SHRI RAJA SINGH

8. SMT. SUSHILA, AGED 30 YEARS, D/O SHRI
RAJA SINGH

(APPELLANS/PLAINTIFFS NOS. 1 TO 6 ARE
ALL SONS OF SHRI RAJA SINGH)
(ALL AGRICULTURISTS AND RESIDENT OF
VILLAGE TENDUHA, POLICE STATION :
AMILIHA, TEHSIL : SIHAWAL, DISTRICT -
SIDHI (M.P.)
                                           ....APPELLANTS
(BY SHRI CHANDRAHAS DUBEY - ADVOCATE)

AND

1. THE STATE OF M.P. THROUGH S.D.O.,
MAUGANJ DISTRICT - REWA (M.P.)

2. THE STATE OF MADHYA PRADESH
THROUGH     ADDITIONAL  TEHSILDAR,
CIRCLE KHATKARI, TEHSIL - MAUGANJ,
DISTRICT - REWA (M.P.)

3. SHRI INDRA RAJ SINGH, S/O GAJRAJ
SINGH, AGED 40 YEARS, OCCUPATION -
AGRICULTURIST, R/O VILLAGE TENDUHA,
P.S. AMILIHA, TESHIL - SIHAWAL,
DISTRICT - SIDHI (M.P.)
4. THE STATE OF MADHYA PRADESH
THROUGH THE COLLECTOR, REWA (M.P.)
                                                   3

                                                                           .....RESPONDENT

      (BY SHRI SHESHMANI MISHR - PANEL LAWYER & SHRI SOURABH
      PATHAK - ADVOCATE FOR R/3)


     .......................................................................................................................

     Reserved on            : 11.09.2023

     Pronounced on          : 22.09.2023

     .......................................................................................................................

              This second appeal having been heard and reserved for orders, coming on for

     pronouncement this day, the Court passed the following :

                                             ORDER

This second appeal has been filed against the order dated 15.07.1999 passed by

learned First Appellate Court at Rewa in Civil Appeal No.63A/1998 whereby, the appeal

against the judgment and decree passed by learned Civil Judge, Class-I, Mauganj District-

Rewa in Civil Suit No.322-A/91 whereby, the learned Civil Judge dismissed the suit of

plaintiffs-Punyalal Singh and others on the basis of lack of jurisdiction. The learned First

Appellate Court dismissed the appeal as being time barred by one month twenty five days.

2. The grounds raised in this appeal are that the Appellate Court ought to have held that the

appellant/plaintiffs were prevented by sufficient cause and the delay in filing the case was

bonafide. The Court below after giving a specific finding that from the perusal of order dated

09.08.1996, it is apparent that none of the parties were present in the Court and in the absence

of any finding to show that Shri H.L. Tripathi- Advocate had informed the appellant No.1

about the judgment dated 09.08.1996, the application for condonation of delay should have

been allowed.

3. Learned counsel for other party support the order of learned First Appellate Court.

4. This appeal was admitted on the following substantial questions of law on 07.04.2000.

i) Whether the Court below is right in holding that there was variance between pleading and proof regarding the allegations made by the appellant-Punyalal Singh against his counsel Shri H.L. Tripathi?

ii) Whether the Court below failed to see that under the facts and circumstances of the case, the appellant-Punyalal Singh was bound to examine his counsel Shri H.L. Tripathi who had allegedly dealt with his case in a negligent manner?

5. Heard learned counsel for rival parties and perused the record.

6. During the course of argument, learned counsel for appellant has placed reliance on the

following citations:

1) Poonam and Ors. Vs. Harish Kumar and Anr. AIR 2012 SC (Supp) 733 in which,

the Hon'ble Supreme Court in paragraph 15 has held that under Section 5 of Limitation

Act, 1963 application for condonation of delay - sufficient cause - delay of 63 days in

filing appeal - Appellants were three ladies one of them was pursuing case and she fell

sick - Therefore, she was not in position to pursue legal remedy with due diligence as a

result of which appeal was filed with a delay of 63 days - Delay of 63 days was not

delay for long period and there had been sufficient explanation for delay - Hence delay

was liable to be condoned.

2) Hanmawa and Ors. Vs. Pettiya and Ors. AIR 2008 SC (Supp) 1040 in which, the

Hon'ble Supreme Court has held in paragraphs 3 & 4 that under Section 5 of Limitation

Act, 1963 and Section 100 of CPC condonation of delay - Appellant illiterate villagers

going place to place for work - Getting knowledge of order passed against them only

when they reached their village - Appeal filed immediately on knowing that they should

file appeal - Delay stands sufficiently explained - Dismissal of second appeal on ground

of limitation - Improper.

3) N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 in which, the Hon'ble

Supreme Court has held in paragraph 9 to 14 that Section 5 of Limitation Act -

Condonation of delay - Discretion of court - How to exercise - Guidelines stated -

Words "sufficient cause" should be construed liberally - Acceptability of explanation for

the delay is the sole criterion, length of delay not relevant - In absence of anything

showing mala fide or deliberate delay as a dilatory tactic, court should normally

condone the delay - However, while doing so court should also keep in mind the

consequent litigation expenses to be incurred by the opposite party and should

compensate him accordingly - Where a court condones delay in positive exercise of

discretion, superior court and more particularly the revisional court should not normally

disturb the same - But where request for condonation of delay is refused, it would be

open to the superior court to come to its own finding on the basis of explanation for the

delay given by the party - Delay on the part of the defendant-appellant of 883 days in

approaching the court against dismissal of his application to set aside ex-parte decree

passed against him - Non-action on the part of his advocate explained as cause for the

delay - Appellant also complaining about conduct of the advocate before Consumer

Forum and getting Rs.50,000/- as compensation - Appellant's explanation for the delay

accepted and delay condoned by trial Court - But in revision High Court setting aside

the order of trial Court on ground that appellant was negligent and was not careful

enough to meet the advocate to verify the stage of the proceedings for a long time -

Held, High Court in revision erred in interfering with the exercise of jurisdiction by trial

court in condoning the delay when appellant's conduct did not as a whole warrant

castigating him as an irresponsible litigant having regard to present busy and

preoccupied life

Limitation Act, 1963 - Object of fixing time-limit - Not meant to destroy rights - It is

founded on public policy fixing a life span for the legal remedy for the general welfare

7. The substantial questions of law framed on 07.04.2000 are basically not substantial

questions of law but are in fact questions of fact.

8. This Court has perused the statement recorded by the concerned court and it seems

that a very hypertechnical appreciation of evidence has been done in matter of

condonation of delay which may not be required in facts and circumstances of the case

in hand.

9. Learned counsel for respondent at the time of argument argued that affidavit of

counsel Shri H.L. Tripathi was not produced. He was present at the time of

pronouncement of judgment but was not called as a witness. Shri H.L. Tripathi is still

appearing in other cases of the same appellant therefore, delay was deliberate. He

referred to the judgment of Hon'ble Co-ordinate Bench of this Court in Geetarani

Ghosh Vs. Bhagwati Bai & Ors. 2006(2) MPLJ 45 in which in paragraph 16 & 17, it

has been held that proper reasons for the delay not made out, appeal presented after two

years therefore, application for condonation of delay was dismissed.

10. But the delay in this case is not extra-ordinary, delay is of 55 days only, regarding

not producing in evidence of Shri H.L. Tripathi- Advocate or filing his affidavit, it is a

common knowledge that this task would be very very difficult for a litigant, as, if any

negligence was committed by Shri H.L. Tripathi- Advocate he would not admit it or

counter allegations would be made and no fruitful purpose would be achieved by

undertaking that exercise therefore, looking to the period and the facts in hand, the

learned concerned Court should not have rejected the application and should have

allowed it on a liberal approach.

11. In the light of the above discussion, the citations produced by both the counsel for

rival parties, this Court is of the considered view that although the learned Appellate

Court was correct in a hypertechnical way to hold that appellant was bound to examine

Shri H.L. Tripathi- Advocate and there was variance in pleading and proof but even

answering both the substantial questions of law which as held earlier are really not

question of law but of facts in affirmative this Court is of considered view that the

learned court should have allowed the application. Accordingly, this appeal is allowed,

delay is condoned and the case is remanded by setting aside the order dated 15.07.1999

but subject to the appellant paying cost of Rs.5000/- to the other party as a pre-condition

and Rs.1000/- to be deposited in District Legal Service Authority, Rewa.

12. Learned First Appellate Court is directed to decide the First Appeal on merit in

accordance with law expeditiously.

13. Record be sent back along with copy of this order to the concerned Court.

(AVANINDRA KUMAR SINGH) JUDGE

Shubh SHUBHAM THAKKER 2023.09.23 10:43:57 +05'30'