Smt. Samina Begum vs Mohd. Jamil
2024 Latest Caselaw 4355 MP

Madhya Pradesh High Court

Smt. Samina Begum vs Mohd. Jamil on 15 February, 2024

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

                                                          1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
                                            ON THE 15 th OF FEBRUARY, 2024
                                             CIVIL REVISION No. 271 of 2021

                          BETWEEN:-
                          SMT. SAMINA BEGUM W/O HAMID KHAN, AGED
                          ABOUT 45 YEARS, OCCUPATION: HOUSE WORK
                          RESIDENT OF IBRAHIM KIRANA CHHATARPUR TAH.
                          AND DISTT. CHHATARPUR M.P. (MADHYA PRADESH)

                                                                                      .....PETITIONER
                          (BY SHRI JANAK LAL SONI - ADVOCATE)

                          AND
                          1.    MOHD. JAMIL S/O HAIDAR THEKEDAR, AGED
                                ABOUT 55 YEARS, RESIDENT OF NEAR BASARI
                                DARWAJA TH AND DISTRICT CHHATARPUR M.P.
                                (PLAINTIFF} (MADHYA PRADESH)

                          2.    SMT.MUNNI BEGUM W/O NOOR MOHAMMAD,
                                AGED ABOUT 53 YEARS, KHATKYANA MOHALLA
                                TAH.AND   DISTT.CHHATARPUR     (MADHYA
                                PRADESH)

                                                                                   .....RESPONDENTS
                          ( SHRI BINOD KUMAR TIWARI - ADVOCATE AND MS. SHIKHA BAGHEL -
                          PANEL LAWYER )

                                This revision coming on for admission this day, th e court passed the
                          following:
                                                           ORDER

Petitioner has filed present Civil Revision under Section 115 of CPC against order dated 05.08.2021 passed in MCA No.8/2019 passed by Vth Additional District Judge, Chhatarpur arising out of order dated 21.01.2019 passed in MJC No.900003/2016 passed by IVth Civil Judge, Class-I, whereby application under Order 9 Rule 9 CPC in respect of restoration of Civil Suit

No.11A/15 and application filed under Section 5 of the limitation Act has been allowed.

2. Learned counsel for the petitioner submits that respondent/plaintiff's suit was dismissed on 25.01.2016. Respondent/plaintiff prepared application under Order 9 Rule 9 CPC on 02.02.2016 and it has been filed on 30.03.2016. There is no document on record showing that power of Attorney holder Mohd. Hafiz was not well on 25.01.2016. Respondent/plaintiff has not examined power of Attorney holder Mohd. Hafiz to prove that he was not well on 25.01.2016. Learned counsel for the petitioner also submits that from evidence on record, it is not proved that power of Attorney holder Mohd. Hafiz fall ill on 25.01.2016,

therefore, he could not appear in the Court. There is nothing on record to show that power of Attorney holder remained sick from 23.01.2016 to 25.01.2016. Relying on judgment of this Court in the case of Rajeev Singh Vs. Ram Singh and Others, it is submitted that no sufficient cause has been shown for condoning delay. Therefore, delay in filing application under Order 9 Rule 9 CPC should not have been condoned by Appellate Court. Hence, on above grounds, it is urged that petition filed by the petitioner be allowed and impugned order be set aside.

3. Learned counsel for the respondent/plaintiff, after referring to impugned order, submits that there is delay of only 36 days. Therefore, appellate Court has rightly condoned the delay. Hence, petition filed by the petitioner be dismissed.

4. I have heard learned counsel for the parties and perused record of the case.

5. Admittedly, plaintiff filed present suit through power of Attorney holder

Hafiz but plaintiff did not examine Hafiz in relation to, his application under Section 5 of the limitation Act has been filed before the trial Court.

6. In the instant case, respondent's suit was dismissed on 25.01.2016. Plaintiff filed an application under Order 9 Rule 9 CPC, along with application under Section 5 of the limitation Act. Above applications were filed on 30.03.2016. It is also evident from record of the case that plaintiff filed medical prescription (Ex.P/1) dated 23.01.2016 concerning Mohammad Hafiz, power of Attorney holder of plaintiff who filed present suit. 7 It is also well established that provision relating to condonation of delay has to be liberally construed and generally a case should be disposed off on merits and should not be dismissed on the ground that it is barred by limitation. Perusal of case file reveals that there is delay of approximately 36 days. Thus, there is no huge delay in filing application under Order 9 Rule 9 CPC and Section 5 of the limitation Act. In Rajeev Singh's case (Supra), there was delay of three years and two months. It is not so in the instant case.

8. Hence, in view of above, it cannot be said that learned Appellate Court has committed any illegality or perversity in setting aside trial Courts order and condoning the delay.

9. Hence, in view of above, petition filed by the petitioner is dismissed and impugned passed by Appellate Court is affirmed.

(ACHAL KUMAR PALIWAL) JUDGE vai