Dashrath Kumar Talreja vs Manoj Thapa
2024 Latest Caselaw 12317 MP

Madhya Pradesh High Court

Dashrath Kumar Talreja vs Manoj Thapa on 2 May, 2024

                                   1
 IN      THE     HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
         HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
                        ON THE 2 nd OF MAY, 2024
                   SECOND APPEAL No. 2600 of 2022

BETWEEN:-
DASHRATH KUMAR TALREJA S/O SHRI BHAGCHAND
TALREJA, AGED ABOUT 72 YEARS, OCCUPATION:
BUSINESS 26 PARAS MAJESTIC E-8 TRILANGA BHOPAL
AT PRESENT A-2/602 PARAS URBAN PARK E-8
EXTENSION BAWADIYA KALA BHOPAL        (MADHYA
PRADESH)

                                                               .....APPELLANT
(BY SHRI ANKIT SAXENA - ADVOCATE)

AND
MANOJ THAPA S/O LATE GOPAL THAPA PLOT NO. 131/10
MP NAGAR ZONE II BHOPAL. (MADHYA PRADESH)

                                                             .....RESPONDENT
(NONE)

      This appeal coming on for admission this day, th e court passed the
following:
                               JUDGMENT

This second appeal has been filed by the appellant/plaintiff assailing the impugned order dated 20.09.2022 passed on application under Section 5 of Limitation Act, whereby the application for condonation of delay in filing the first appeal has been dismissed.

2. Appellant had filed a suit for eviction on the ground of Section 12(1)(a) and 12(1)(f) of MP Accommodation Control Act, 1961 (for short hereinafter referred to as "Act"). The suit was dismissed by the trial Court vide judgment and decree dated 29.04.2017 passed in RCS No. 213A/2014. This judgment

and decree passed by the trial Court was challenged before the First Appellate Court in RCA No. 138/2017, an application dated 27.06.2017 under Section 5 of Limitation Act for condoning the delay in the filing the first appeal, the same was dismissed vide impugned order dated 20.09.2022 on the ground that no explanation has been given for delay upto 26.06.2017 after discharged from the hospital on 24.06.2017.

3. This order of dismissal passed by the First Appellate Court was challenged in the second appeal which has been admitted for final hearing on 08.08.2023 on the following substantial question of law:-

"Whether, learned First Appellate Court committed error in dismissing the application of condonation of delay under Section 5 of Limitation Act ?"

4. Learned counsel for the appellant submit that as mentioned at page 15 of the appeal memo in paragraph 2 of impugned order, appellant after discharge from the hospital on 24.06.2017, 25.06.2017 was Sunday and 26.06.2017 was holiday on account of festival of Eid al-Fitr. For this, he has referred the calender of holiday prescribed for subordinate courts in the year 2017. This is sufficient explanation for filing the first appeal on the next working day i.e. 27.06.2017 and prayed for setting aside the impugned order and remand the first appeal to the court concerned for deciding it own merits.

5. Heard learned counsel for the appellant and perused the record.

6. It is appears that learned First Appellate Court appears to have taken hypertechnical view in deciding the application filed for condoning the delay. It is settled position of law that a liberal view should be taken while deciding the application under Section 5 of Limitation Act.

7. In case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, reported in AIR 1987 SC 1353, Hon'ble the Supreme Court has held as under: -

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of the justice that being the life- purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen in that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of

the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the non-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore, have to inform with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits."

Thus, considering the law laid down by the Apex Court, it is not in dispute that the State is impersonal machinery and for the reason mentioned above the Officer-in-Charge could not file appeal and there was only 12 days' delay. As explained by the Officer-in-Charge, in my opinion, there was sufficient ground for condonation of delay in this case. Lower Appellate Court should have taken pragmatic approach in considering the application and should have considered the law laid down by the Apex Court in objective manner. Accordingly, this appeal is allowed. The impugned order passed by the Lower Appellate Court is set side and I.A. No. 1/97, an application for condonation of delay is allowed and delay in filing appeal is condoned. The case is remanded back to the Lower Appellate Court to hear and decide the appeal on merits."

8. Application dated 27.06.2017 was filed under Section 5 of Limitation Act with affidavit of appellant for condoning the delay in filing the appeal.

9. Looking to the fact that appeal was filed on 27.06.2017 after holiday of Sunday 25.06.2017 and holiday on the occassion of Eid al-Fitr festival on 26.06.2017. Due to the public holiday on Sunday and Monday delay of two

days itself explained. As emphasized by the learned counsel for the respondent in reply to the application under Section 5 of Limitation Act, learned First Appellate Court has returned a perverse findings of delayed filing of the appeal, ignoring the sufficient reasons for condoning the delay as mentioned hereinabove.

10. In the light of aforesaid facts and observations in the judgment by the Apex Court in Collector, Land Acquisition, Anantnag and another (Supra) inpugned order dated 20.09.2012 passed by the order passed by the First Appellate Court is vulnerable and cannot found stamp of approval of this Court.

11. Accordingly, present second appeal stands allowed and impugned order dated 20.09.2022 passed by learned Appellate Court in RCA No. 138/2017 is hereby set aside. Delay in filing the appeal is hereby condoned. Substantial question of law is answered in affirmative and matter is remand back to the First Appellate Court with a direction to decide the appeal afresh on its own merits after affording reasonable opportunity of hearing to the parties.

12. Parties are directed to remain present before the learned First Appellate Court on 08/07/2024.

13. Let a copy of this order along with record be sent back to the First Appellate Court for information and necessary action.

(BINOD KUMAR DWIVEDI)

L.R. RANA