Madhya Pradesh High Court
Krishna Kumar vs Lalti Bai on 6 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE PRAMOD KUMAR AGRAWAL
MISC. APPEAL No. 5783 of 2019
BETWEEN:-
1. KRISHNA KUMAR S/O LATE SAHABLAL GOND,
AGED ABOUT 32 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE HARDULI P.S. AND
TEHSIL DHANOURA (MADHYA PRADESH)
2. SUNDARWATI W/O LATE SAHABLAL GOND, AGED
ABOUT 60 YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE HARDULI, POLICE STATION AND
TEHSIL DHANOURA (MADHYA PRADESH)
3. LAV KUMAR S/O LATE SAHABLAL GOND, AGED
ABOUT 30 YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE HARDULI, POLICE STATION AND
TEHSIL DHANOURA (MADHYA PRADESH)
4. REMANWATI W/O ISHWAR AHKE, AGED ABOUT
40 YEARS, OCCUPATION: AGRICULTURIST R/O
VILLAGE HARDULI, POLICE STATION AND
TEHSIL DHANOURA (MADHYA PRADESH)
5. KUSH KUMARI D/O LATE SAHABLAL GOND,
AGED ABOUT 28 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE HARDULI, POLICE
STATION AND TEHSIL DHANOURA (MADHYA
PRADESH)
6. CHHOTA BAI D/O LATE SAHABLAL GOND, AGED
ABOUT 35 YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE HARDULI, POLICE STATION AND
TEHSIL DHANOURA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI R.K. VERMA - SENIOR ADVOCATE WITH SHRI RAM MURTI
TIWARI - ADVOCATE )
AND
1. LALTI BAI W/O LATE HARLAL GOND, AGED
ABOUT 70 YEARS, VILLAGE BHURKUNDI P.S. AND
TEHSIL DHANOURA DISTT. SEONI (MADHYA
Signature Not Verified
Signed by: ANUPRIYA
SHARMA
Signing time: 2/7/2024
2:05:58 PM
2
PRADESH)
2. GULAB SINGH S/O LATE HARLAL GOND, AGED
ABOUT 40 YEARS, R/O VILLAGE BHURKUNDI,
POLICE STATION AND TEHSIL DHANOURA
(MADHYA PRADESH)
3. GULABO BAI D/O LATE HARLAL GOND, AGED
ABOUT 45 YEARS, R/O VILLAGE BHURKUNDI,
POLICE STATION AND TEHSIL DHANOURA
(MADHYA PRADESH)
4. LAXMI CHAND S/O LATE HARLAL GOND, AGED
ABOUT 35 YEARS, R/O VILLAGE BHURKUNDI,
POLICE STATION AND TEHSIL DHANOURA
(MADHYA PRADESH)
5. LAXMI BAI D/O LATE HARLAL GOND, AGED
ABOUT 30 YEARS, R/O VILLAGE DODAWANI.
POLICE STATION AND TEHSIL DHANOURA
(MADHYA PRADESH)
6. SHRIVATI W/O LATE HARCHARAN GOND, AGED
ABOUT 50 YEARS, R/O MASOORBHAVARI, THAN
CHAPARA, POST BHEEMGARH, TAHSIL
LAKHNADON, (MADHYA PRADESH)
7. GYAAN SINGH S/O LATE HARCHARAN GOND,
AGED ABOUT 28 YEARS, R/O MASOORBHAVARI,
THAN CHAPARA, POST BHEEMGARH, TAHSIL
LAKHNADON, (MADHYA PRADESH)
8. DHAYAAN SINGH S/O LATE HARCHARAN GOND,
AGED ABOUT 26 YEARS, R/O MASOORBHAVARI,
THAN CHAPARA, POST BHEEMGARH, TAHSIL
LAKHNADON, (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUSHIL KUMAR TRIPATHI - ADVOCATE)
Reserved on : 16.01.2024
Pronounced on : 06.02.2024
........................................................................................
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced the following:
Signature Not Verified
Signed by: ANUPRIYA
SHARMA
Signing time: 2/7/2024
2:05:58 PM
3
ORDER
It is submitted that approach of the lower Court is hiper technical. The
trial Court should have decided the appeal on merit but it has dismissed the
appeal on technical ground. When he filed application for restoration of the
appeal then that application has also been dismissed by the Court. Litigant is
ignorant and completely dependent on their counsel and on account of mistake
of counsel, party should not be penalised. He also submitted that it is settled
principle of law that in such matter the Court should adopt liberal attitude and
decide the matter on merit. In this case appellants are in possession since 1972
and cultivating the land but his case has been dismissed on technical ground. He
submitted that order of the trial Court be set aside and appellant be given an
opportunity on cost and matter is remanded to the first appellate Court to
decide the appeal on merit. In support of his submission, learned counsel for
the appellants relied in the case of Mahadev Govind Gharge and others Vs.
Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi,
Karnataka (2011) 6 SCC 321.
2. Learned counsel for the respondent has submitted that appellant did
not comply the order of the appellate Court five time. He also submitted that in
this case State has not been made party. Learned appellate Court has passed a
reasoned order, therefore, prays for dismissal of the appeal.
3 . Common experience shoes that in civil cases, litigants completely
depend upon the advice of their counsel. Therefore, on account of some
mistakes, errors or procedural laws, litigant cannot be made sufferer because of
some negligent attitude adopted by the counsel. In the present matter, appellants
are illiterate persons and by caste are tribes, therefore, they were totally
dependent upon their counsel.
4. In this matter, appellant Sahablal Gond filed F.A. No.25A/2012 before
the First Additoinal District Judge, Lakhnadon, District Seoni.
5 . In this appeal, first Appellate Court passed the order on 3 or 4
occasions for payment of process fee for issuance of notices to one of the
respondents unserved. The deceased/appellant Sahablal is father of appellants
in the present case. Deceased/appellant was attending the Court but he was not
aware of the facts as to whether process fee has been paid by his counsel or
not. On 18.03.2016 his appeal was dismissed by the Court for want of
compliance of the order as no process fee was paid for issuance of notices to
the un-served respondents.
6. It is pertinent to mention here that on the same day i.e. 18.03.2016,
learned counsel for appellant moved an application under Order 41 Rule 19 of
CPC for restoration/readmission of appeal but the first Appellate Court by
order dated 21.08.2019 rejected the application on the ground that on so many
occasions, time was granted but no process fee was paid and litigant is also
responsible for non-compliance of the order.
7 . It is settled law that when substantial justice and technical
consideration are pitted against each other, substantial justice deserves to be
preferred. It is also settled that merits of the case cannot be thrown out at the
threshold or on technical ground. It may defeat the justice. In this regard,
learned counsel for appellant placed reliance upon the decision of Supreme
Court in the case of Rafiq Vs. Munshilal, 1981 AIR(SC) 1400, whereby it is
held that the party not to suffer for disdemeanour of his Advocate.
8 . It is undisputed principle of law that procedural laws are primarily
intended to achieve the ends of justice and, normally, not to shut the doors of
justice for the parties at the very threshold. In this regard, learned counsel for
appellant placed reliance on the decision of Supreme Court in the case of
Mahadev Govind Gharge and others Vs. Special Land Acquisition Officer,
Upper Krishhna Project, Jamkhhandi, Karnataka, (2011) 6 SCC 321,
relevant extract of which is reproduced below for ready reference and
convenience:-
" 37. Procedural laws, like the Code, are intended to control and regulate the
procedure of judicial proceedings to achieve the objects of justice and expeditious
disposal of cases. The provisions of procedural law which do not provide for penal
consequences in default of their compliance should normally be construed as directory
in nature and should receive liberal construction. The Court should always keep in
mind the object of the statute and adopt an interpretation which would further such
cause in light of attendant circumstances. To put it simply, the procedural law must
act as a linchpin to keep the wheel of expeditious and effective determination of
dispute moving in its place. The procedural checks must achieve their end object of
just, fair and expeditious justice to the parties without seriously prejudicing the rights
of any of them."
9. In this matter, appellant has filed an application under Order 41 Rule
19 of CPC for restoration, on the same day. In this case, dispute is related to
immovable property. Appellant filed first appeal being aggrieved by the
judgment and decree passed by the trial Court, therefore, the first Appellate
Court should have given opportunity to the appellant to argue the case on merits
instead of dismissing his appeal on technical ground. Although there is some
mistake on the part of appellant that he has not paid process fee as ordered by
the Court but in the considered opinion of this Court, appellant be given one
opportunity to argue the appeal on merits, therefore, application of appellant
preferred under Orer 41 Rule 19 of CPC is allowed with the cost of Rs.10,000/-
(Rupees Ten Thousand only) which shall be paid by the appellants to the
respondents.
11. Let the aforesaid cost be paid within a period of 30 days from today,
failing which the matter be listed before this Court under the caption of
"Direction" as PUD for execution qua cost.
12. Consequently, order passed by the First Additional District Judge,
Lakhnadon, District Seoni on 21.08.2019 in MJC No.60/16 and order dated
18.03.2016 passed in F.A. No.25A/2012 are set aside/quashed and first appeal
is restored to its original number. The First ADJ, Lakhnadon, District Seoni is
directed to decide the appeal on merits in accordance with law.
13. This Miscellaneous Appeal is disposed of.
(PRAMOD KUMAR AGRAWAL)
JUDGE
anu
