Madhya Pradesh High Court
Siddnath vs Kanchanbai on 10 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 10 th OF MAY, 2024
MISC. PETITION No. 4708 of 2022
BETWEEN:-
SIDDNATH S/O GOPILAL BALAI, AGED ABOUT 70
Y E A R S , OCCUPATION: AGRICULTURE VILLAGE
SULTANIYA, TEHSIL PACHORE, DISTRICT RAJGARH
(MADHYA PRADESH)
.....PETITIONER
( BY SHRI MOEED ALI BOHRA - ADVOCATE )
AND
1. KANCHANBAI W/O PREMNARAYAN BALAI, AGED
ABOUT 34 YEARS, VILLAGE SULTANIYA, TEHSIL
PACHORE, DISTRICT RAJGARH (MADHYA
PRADESH)
2. KAMLABAI W/O BADRILAL, AGED ABOUT 55
YEARS, OCCUPATION: NIL VILLAGE SULTANIYA
TEH. PACHORE (MADHYA PRADESH)
3. BADRILAL D/O JALAMSINGH, AGED ABOUT 57
YEARS, OCCUPATION: NIL VILLAGE SULTANIYYA,
TEH. PACHORE (MADHYA PRADESH)
4. THE STATE OF MADHY PRADESH THROUGH
COLLECTOR RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI AKHILESH KUMAR SAXENA- ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
1. The petitioner has preferred present petition under Article 227 of the
Constitution of India being aggrieved by impugned order dated 24/08/2022
passed in MCA no. 2/2017 by 2nd ADJ, Sarangpur, District-Rajgarh (Biora)
whereby Misc. Appeal filed by the petitioner under Order 43 Rule 1 and 2 of
CPC has been dismissed by upholding the order dated 06/01/2017 passed by
Civil Judge, Class-II, Sarangpur in MJC no. 5/2014
2. Brief facts of the case are that petitioner filed a civil suit dated 03-03-
2011 before Civil Judge Class-II, Sarangpur, Rajgarh (Biora) for specific
performance of contract, possession and also for declaration of sale deed dated
27-03-2010 not binding and mesne profit. On 19/04/2011, respondent no. 1
could not appear before the trial Court and ex-parte proceeding was drawn
against her and on 28/01/2013, ex-parte judgment and decree was passed
against respondent no. 1. Thereafter, respondent no. 1 filed an application
under Order 9 Rule 13 of C.P.C for setting aside the decree along with an
application under section 5 of the Limitation Act before the trial Court and the
same was allowed by the trial Court. Being aggrieved by the order passed by
the trial Court, the petitioner preferred Misc. Appeal before 2nd ADJ,
Sarangpur and vide order dated 24/08/2022, the same has been dismissed by
upholding the order passed by the trial Court. Being aggrieved by the same, the
petitioner has preferred present misc. petition before this Court.
3. Learned counsel for the petitioner submits that the impugned orders
passed by both the Courts below are illegal, contrary and against the law. The
respondent had taken excuse that she was away from the house for 3 years for
purpose of agriculture which is quire unnatural The knowledge acquired after
notice of execution cannot be considered. Both the Courts below have not
considered that respondent no. 1 has to explain the delay of day to day, No
bonafide reason has been assigned by respondent no. 1. Hence, he prays that
the impugned orders passed by both the Courts below be set aside.
4. To bolster his contention, learned counsel has placed reliance upon
the judgment of Hon'ble Apex Court delivered in the case of GMG
Engineering Industries and others Vs. Issa Green Power Solution and
others reported in (2015) AIR (SC) 2675 and judgment delivered by Co-
ordinate Bench of this Court in the case of Javed Khan Vs. Avtar Singh
reported in 2006(1) MPHT 181
5. Per-contra, learned counsel for the respondent opposes the petition
and prays for its rejection by submitting that the impugned order passed by
both the Courts are just and proper and do not deserve for any interference.
6. Heard leaned counsel both the parties and perused the record.
7. Hon'ble Supreme Court Shakuntala Devi Vs. Kuntal Kumari
reported in Collector, Land Acquisition, Anantnag Vs Katiji, AIR 1987
SC 1353, a learned Judge of this Court at para 6, held as follows:
" (6). It is settled law that the discretion vested in the Court in the
matter of dealing with the application filed under section 5 of the
Limitation Act is to be exercised in the way in which judicial
power and discretion ought to be exercised upon principles which
are well understood. The words " sufficient cause" receiving a
liberal construction so as to advance substantial justice when no
negligence nor inaction or want of bonafies is imputable to the
appellant"
8. No doubt, in the instant case, the delay is inordinate, but while
considering the contention, as to whether, the delay is bonafide, it should be
remember that respondent no. 1 is a villager, illiterate and poor lady. To earn
livelihood, he has to travel so many places including Gujarat and poor lady
should not be deprived from substantial justice. Hon'ble Supreme Court in the
case of Sheoraj Singh (deceased) through LRs Vs. Union of India and
another reported in 2023(10) SCC 531, held that substantive rights of
private parties and the State are not defeated at the threshold simply due to
technical considerations of delay.
9. In view of the aforesaid and poor condition of respondent no. 1,
liberal and justice oriented approach taken by both the Courts below in exercise
of their discretionary power, appears to be just and proper. There is no illegality
or perversity, in which interference is required.
10. Accordingly, present Misc. Petition, devoid of merit and substance,
is hereby dismissed.
CC as per rules
(ANIL VERMA)
JUDGE
amol
