Madhya Pradesh High Court
Indrajeet Singh Chhabra vs Smt. Anita Chatarjee on 6 May, 2024
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF MAY, 2024
MISC. APPEAL No. 1449 of 2015
BETWEEN:-
INDRAJEET SINGH CHHABRA S/O LATE SHRI
AMAR SINGH CHHABRA, AGED ABOUT 60 YEARS,
598 SOUTH CIVIL LINE JABALPUR (MADHYA
PRADESH)
.....APPELLANT
( BY SHRI PANKAJ DUBEY - ADVOCATE )
AND
1. SMT. ANITA CHATARJEE W/O SHRI DR.
RUPAK CHHATARJEE, AGED ABOUT 39
YEAR S , OCCUPATION: SERVICE A-26 (GF)
SWATHYA VIHAR VIKAS MARG I.P. EXTN.
DELHI (DELHI)
2. MALVICA BANERJEE W/O SURJEET
BANERJEE, AGED ABOUT 39 YEARS,
OCCUPATION: HOUSE WIFE RESPONDENT
N O A N D THROUGH THEIR POWER OF
ATTORNEY HOLDER SHRI ASHOK KUMRA
A G E S/O SHRIKANT MUKHERJEE R/O B/
PHARMA EXTN. PAATPAR GANJ DELHI R/O
II FLOOR, KAPIL TOWERS, 6 CANAL ROAD
RAMDAS PETH (MAHARASHTRA)
3. COLLECTOR THE STATE OF MADHYA
PRADESH JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAMJI PATEL - PANEL LAWYER FOR RESPONDENT
NO.3/STATE. )
This appeal coming on for hearing this day, the court passed the
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 5/28/2024
6:11:43 PM
2
following:
ORDER
With the consent of parties, the matter is heard finally.
2. This Miscellaneous Appeal has been filed under Section 104(1)
(i) r/w Order 43 Rule 1(c) of Code of Civil Procedure being aggrieved by
the impugned order passed by 7th Additional District Judge, Jabalpur in
MJC ( unregistered ) [ Indrajeet Singh Chhabra vs. Smt. Anita and Ors]
by which the appellant's application under Section 5 of Limitation Act to
condone the delay in filing the application under Order 9 Rule 9 of CPC
was dismissed and the application under Order 9 Rule 9 CPC for the
restoration of the suit was also dismissed.
3. Learned counsel for the appellant has submitted that the case
was dismissed on 20-01-2015 and the case was not listed for hearing and
only document was to be returned by Collector of Stamps after validation
by the Collector of Stamps. The plaintiff was pursuing his case but, the
Collector of Stamps has not completed the proceedings, for that, the
appellant/plaintiff cannot be held liable. He has further submitted that his
counsel was present before the Court but, on that basis, the order of the
Trial Court regarding the dismissal cannot be treated a judgment passed
under Order 17 Rule 3. The order of dismissal passed in presence of the
counsel shall be treated as order passed under Order 17 Rule 2 and for
that,the application under Order 9 Rule 9 of CPC is maintainable and he
has relied upon the Full Bench Judgment of this Court passed in Rama
Rao and Ors. vs. Shantibai and Ors. AIR 1977 MP 222 and has
further argued that an application under Order 9 Rule 9 of CPC was filed
but, the delay of 15 days was not be condoned by the trial Court though
he has filed medical certificate issued by the doctor as he was under
treatment from 10-03-2014 to 10-04-2014. The Trial Court has not
considered this fact that after treatment it takes sometime to recover the
person. He has relied on the judgment of the Apex Court in the case in the
Benny D'Souza & Ors. vs. Melvin D'Souza & Ors in SLP (c) No.
23809/23 decided on 23rd November, 2024, State Bank of India vs.
Nandram ( Deceased ) Through LRs and Ors. (1999) 1 MPLJ 719,
State Bank of India Bhopal vs. M/s Surbhi Associates Thr. its
Partner Shri Santosh Kumar Ramtani and Ors. (2022) 3 MPWN 77
and Riyaz Khan and Ors. vs. Kasam Khan and Ors 2013 (2) MPLJ
110 and order passed in MA No. 744/10 dated 16-02-2017.
4. Learned counsel for the respondents has submitted that the case
was adjourned for more than 3 years for document that was impounded
for proper stamp. It was the duty of the plaintiff that after paying the
proper stamp to make the documents admissible in evidence and he was
bound to produce the document and he has relied on the document but, he
has got more than 3 years time but, he has not submitted the documents
before the trial Court and a last opportunity was given for that purpose
but, the plaintiff has not produced the document and for that purpose the
case was pending since 09-08-2010 to 12-03-2014.
5. The appellant filed the MJC and application to condone the delay
in filing the application under Section 5 of Limitation Act but, he has not
explained the day-to-day delay in filing the application. He has not filed the
prescription of the doctor under whom he was admitted for treatment. The
trial Court has rightly dismissed the application under Section 5 of the
Limitation Act and properly dismissed the application filed under order 9
Rule 9 of CPC.
6. I have gone through the record.
7. In this case, the appellant has filed an application under Order 9
Rule 9 of CPC before the trial Court on 30-04-2014 and an application
under Section 5 of Limitation Act and the application it has been
mentioned that the suit was dismissed on 12-03-2014 and on that date his
counsel was present before the trial Court but wrongly mentioned that the
learned counsel was not present before the trial Court, looking to the
judgment passed by this court in the case of Rama Rao and Ors. (
supra), on the date of hearing, learned counsel for the appellant appeared
and sought for adjournment and that was denied hence, the suit shall be
treated dismissed under Order 17 Rule 2 of CPC. Provisions of Order 9
Rule 9 CPC shall be applicable and more so, in this case, the trial Court
has not dismissed the suit on the basis of that, the suit was finally decided.
8. The application under Section 5 of Limitation Act was dismissed
on the ground that the delay was not explained. In the record, the appellant
has filed a medical certificate issued by the Assistant Surgeon Dr. Girish
Bajpayee and it is clearly mentioned that on 10-03-2014 to 10-04-2014, the
plaintiff/appellant was advised for bed rest and he filed application on 30-
04-2014 with a delay of 17 days and he was not in contact of his counsel
and nothing has been brought against this fact. It was not rebutted that he
was suffering from any illness. In the case of Riyaz Khan ( supra), this
court has held as under :-
"9. I am of the view that suit could not have been
dismissed on such date by the trial Court unless
same was fixed for recording the evidence or any
effective hearing. Even otherwise in any case, if one
day if the counsel of the party did not appear then
as per settled proposition instead to dismiss the
suit or to proceed ex parte, it was the duty of the
Court to inform the party, through summon by
fixing the case on some future date and on such
date, if the party did not appear, then the Court
may pass order either for dismissal of the suit or to
proceed ex parte. Such procedure or process was
not adopted by the trial Court. So firstly on that
account only the impugned application of section 5
of the Limitation Act as well as proceeding under
Order 9, Rule 9 of the Civil Procedure Code ought
to have been allowed by the trial Court itself but the
same was dismissed under the wrong premises.
Then in that circumstance, the Appellate Court has
not committed any error in setting aside the order
of the trial Court and in allowing the application by
the Appellate Court under section 5 of the
Limitation Act as well as application under Order 9
Rule 9 of the Civil Procedure Code by the
impugned order.
10. Apart the above, in view of the settled
proposition of law that while dealing with the
application under section 5 of the Limitation Act
for condoning the delay in any proceeding, besides
considering all other things, the Court is also bound
to consider the stake of litigation also as laid down
by the Apex Court in the matter of M.K Prasad v.
P. Arumugam., reported in (2001) 6 SCC 176 , in
which it was held as under :-
"10. In the instant case, the appellant tried to
explain the delay in filing the application for
setting aside the ex parte decree as is evident
from his application filed under section 5 of the
Limitation Act accompanied by his own
affidavit. Even though the appellant appears not
to be as vigilant as he ought to have been, yet his
conduct does not, on the whole, warrant to
castigate him as an irresponsible litigant. He
should have been more vigilant but on his failure
to adopt such extra vigilance should not have
been made a ground for ousting him from the
litigation with respect to the property,
concededly to be valuable. While deciding the
application for setting aside the ex parte decree,
the Court should have kept in mind the judgment
impugned, the extent of the property involved
and the stake of the parties. We are of the
opinion that the inconvenience caused to the
respondent for the delay on account of the
appellant being absent from the Court in this
case can be compensated by awarding
appropriate and exemplary costs. In the interests
of justice and under the peculiar circumstances
of the case we set aside the order impugned and
condone the delay in filing the application for
setting aside ex parte decree. To avoid further
delay, we have examined the merits of the main
application and feel that sufficient grounds exist
for setting aside the ex parte decree as well".
9. It is a fit case where the trial Court must allow the application
under Section 5 of the Limitation Act, 1963.
10. On the above discussion, the appeal is allowed and the
impugned order passed by the trial Court dated 20-01-2015 is set aside.
The application filed under Section 5 of Limitation Act, 1963 is allowed.
The trial Court is directed to decide the application filed under Order 9
Rule 9 of CPC afresh after giving opportunity to the parties to lead
evidence if any. The parties shall be present before the trial Court on 11-
07-2024.
11. Record of the MJC ( unregistered ) and Civil Suit No. 60-
A/2013 be returned along with copy of this order passed by this Court.
(DEVNARAYAN MISHRA)
JUDGE
PG
