Madhya Pradesh High Court
Omprakash Singh vs Mahesh Singh (Died) Through Lrs A) ... on 21 August, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:18718
1 MA-5594-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 21st OF AUGUST, 2025
MISC. APPEAL No. 5594 of 2023
OMPRAKASH SINGH AND OTHERS
Versus
MAHESH SINGH (DIED) THROUGH LRS A) DEVENDRA AND
OTHERS
Appearance:
Shri Siddharth Sharma - learned Counsel for appellants.
Shri Anuraj Saxena- learned Counsel for respondents No. 1, 2, 3 and
5.
Shri Nirmal Sharma- learned Counsel for respondent No.6/ State.
ORDER
This misc. appeal under Order 43 Rule 1 of CPC filed by appellants
assailing the order dated 16th of August, 2023 passed by Second Additional
District Judge, Bhind in MJC No.37 of 2023, whereby the application filed by
appellants- plaintiffs under Order 9 Rule 9 of CPC has been rejected.
Factual matrix of the case in short is that appellants- plaintiff had filed a
civil suit before the Civil Court seeking declaration and permanent injunction in
respect of disputed property against respondents- defendants. The civil suit was
dismissed on 08-12-2016 in absence of appellants. Appellants presented an
application under Order 9 Rule 9 of CPC for restoration of their civil suit before
the Court of Second Additional District Judge, Bhind bearing MJC No.37 of 2023
along with an application for condonation of delay under Section 5 of the
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Limitation Act. The trial Court rejected the said application vide impugned order
holding that the application was submitted by appellants after long delay of six
years and seven months and no sufficient reason was assigned by appellants.
Being dissatisfied with the impugned order, the appellants have preferred the
instant misc. appeal.
It is contended on behalf of appellants that appellants in their application
under Section 5 of the Limitation Act before the trial Court stated that a writ
petition No. 4321 of 2015 was filed before this Court against the order passed in
original case in which this Court passed a stay order on 30-06-2015 and they were
informed by their counsel that proceedings in the original case have been stayed.
Due to pendency, they were not appearing in the original case and in October,
2016 their advocate was diagnosed with cancer and went to Ahmedabad for
treatment and thereafter, passed away. Besides that, the case was being looked
after by Mr. Abhilakh Singh himself but due to his wife's ill health, he had to go
to Delhi for her treatment. Besides that, a case under Section 307 of IPC was also
pending against appellants in the Court in connection with Crime No. 34 of 2013
and at that time, the appellants were facing threat to their lives from the
complainant party. Due to this reason, they could not appear in the Court. A
petition was also filed before this Court for police protection, against which an
order was passed on 30th of July, 2015 for providing police protection but no
help was provided by police. Appellants are illiterate and are unaware of the legal
procedure, therefore, Mr. Abhilakh Singh used to look after their case but due to
his wife's health continuously deteriorating, he could not pay attention to the
matter. The above facts were not considered by Trial Court while rejecting their
application filed under Order 9 Rule 9 of CPC and no leniency has been adopted.
On these grounds, it is prayed that the impugned order deserves to be set aside.
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On the other hand, learned Counsel for respondents by supporting the
impugned order, opposed contentions of appellants and prayed for dismissal of
this misc. appeal.
Heard learned Counsel for the parties and perused the impugned order as
well as documents available on record.
A decision reported in the case of Allala Bhagavanth Rao v. Garvandula
Vijayalaxmi 2016 4 ALT 43 wherein in para 12 it was observed as under:-
''12 The word 'sufficient cause' is not defined either in the Limitation
Act or in the CPC; the reason appears to be that there is no
straight]acket formula to decide whether the cause shown for
condonation of delay is sufficient cause or not Depending on the facts
and circumstances of each case, the Court can exercise discretion and
decide the sufficient cause. Sufficient cause shall he construed
liberally without adopting any pedantic approach. It cannot be
stretched to frustrate the very intention of Legislature in specifying the
period for filing appeal or petition etc.''
Similarly, in the case of Lanka Venkateswarlu (Died) by L. Rs. v. State of
A.P., (2011) 1 UPLJ 242 (SC), ruled as follows :-
"We are at a loss to fathom any logic or rationale, which could have
impelled the High Court to condone the delay after holding the same to
be unjustifiable. The concepts such as "liberal approach" Justice
oriented approach," "substantial justice" cannot be employed to
jettison the substantial law of limitation, especially in cases where the
Court concludes that there is no justification for the delay. In our
opinion, the approach adopted by the High Court tends to show the
absence of judicial balance and restraint, which a Judge is required to
maintain whilst adjudicating any lis between the parties. We are rather
pained to notice that in this case, not being satisfied with the use of
mere intemperate language, the High Court resorted to blatant
sarcasms. The use of unduly strong intemperate or extravagant
language in a judgment has been repeatedly disapproved by this Court
in a number of cases. Whilst considering applications for condonation
of delay under Section 5 of the Limitation Act, the Courts do not enjoy
unlimited and unbridled discretionary powers. All discretionary
powers, especially judicial powers, have to be exercised within
reasonable bounds, known to the law. The discretion has to be
exercised in a systematic manner informed by reason. Whims or
fancies; prejudices or predilections cannot and should not form the
basis of exercising discretionary powers.
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14. In fact the petitioner did not make out any sufficient cause
except making a bald unsubstantiated allegation in the affidavit If such
lame excuses for condoning the delay are accepted as sufficient causes,
virtually denuding or jeitisoning the substantive law of limitation.
15. In view of the law declared by the apex Court basing on the
concept of real justice, substantial justice the Courts cannot allow
petitions under Section 5 of Limitation Act, when no sufficient cause is
made out Therefore, basing on lame excuse or unsubstantiated cause, it
is difficult to condone the delay, liberally construing the word
sufficient cause.''
Further, the Coordinate Bench of this Court (Main Seat Jabalpur) in the case of
Mohd. Saleem vs. Gopal Mawai and Others reported in ILR 2024 MP 2613 has
observed that longer the delay, the heavier is the burden on the party to prove that
he has prevented by sufficient cause from approaching the Court earlier. Thus,
ordinarily, the Court has to take a liberal view while considering the application
for condonation of delay, the party, who fails to give plausible or convincing
explanation for condonation of delay does not deserve any indulgence by the
Court. Negligent attitude or casual approach is not expected to be entertained''
It is settled principle of law that so far as the question of delay is concerned,
no hard and fast rule can be laid down and it will depend on the facts of each case.
According to the Limitation Act, there is a provision to file an application within
30 days against the order of dismissal of suit. The plaintiffs- appellants had to
submit the application within 30 days from dismissal order dated 08-12-2016 that
means within 08-01-2016, but they had filed the application about 06 years and
seven months from the date of passing dismissal order and the reasons shown in
the application regarding delay are not sufficient reasons. They sat tight over the
matter and did not challenge the same up-to aforesaid long period of more than
six and half years. This on the face of record appears to be very serious. A person
who can sit tight for such a long time for no justifiable reason, cannot be given
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any benefit. The application filed by appellants under Order 9 Rule 9 of CPC was
hopelessely belated.
In view of the above, this Court does not find any illegality or irregularity in
the impugned order rejecting the application filed by appellants under Order 9
Rule 9 of CPC. Accordingly, the instant misc. appeal fails and is hereby
dismissed.
(HIRDESH)
JUDGE
MKB
