Madhya Pradesh High Court
Smt.Gulab Bai vs Seth Bulakhi Chand Trust(Regd) on 19 February, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA No.2207/2005
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON 19TH OF FEBRUARY, 2025
SECOND APPEAL No. 2207 of 2005
SMT.GULAB BAI (DIED) THR. LR. RAJU METHIL
Versus
SETH BULAKHI CHAND TRUST(REGD) AND OTHERS
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Appearance
Shri Vithal Rao Jumre - Advocate for the appellant.
Shri Devashish Sakalkar - Advocate for respondents.
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JUDGMENT
This second appeal is preferred by the original appellant/defendant/
tenant- Smt. Gulab Bai (now dead, through LR - Raju Methil) challenging the
judgment and decree dated 01.08.2005 passed by X Additional District Judge
(Fast Track), Bhopal in regular civil appeal No.25-A/2005 affirming the
judgment and decree dated 21.04.2005 passed by First Additional Civil Judge
Class-I, Bhopal in RCS No.192-A/2002, whereby trial court decreed
respondents/plaintiffs' suit for eviction, which has been affirmed by the
impugned judgment and decree dated 01.08.2005 by dismissing the
appellant/defendant's appeal.
2. Facts in short are that the respondents/plaintiffs had instituted a suit for
eviction with the allegations that the defendant is tenant in a shop of the
plaintiffs on rent of Rs.300/- per month and despite making demand has not
paid rent for a long period. Further, the plaintiff-trust is required the rented shop
for reconstruction. It is alleged that mentioning the aforesaid, a notice dated
03.05.2001 was issued terminating tenancy of defendant but he did not vacate
the shop, as such the plaintiff is entitled for decree of eviction. On inter alia
allegations the suit was filed.
3. By filing written statement, the defendant denied the plaint allegations
and prayed for dismissal of the suit with the contentions that the defendant is
regularly paying rent and the suit has been filed just with a view to harass the
defendant. On inter alia contentions the suit was prayed to be dismissed.
4. On the basis of pleadings of parties trial court framed issues and recorded
evidence of the parties and held that the plaintiffs have by issuance of a valid
notice terminated tenancy of the defendant and accordingly decreed the suit
vide judgment and decree dated 21.04.2005, against which regular civil appeal
was filed by defendant/tenant with delay of 8 days along with application under
Section 5 of the Limitation Act with the prayer for condonation of delay in
filing of the appeal, which was also supported by affidavit.
5. Upon service of summons the plaintiffs appeared and opposed the
application orally, however did not file any reply/counter affidavit. After
hearing the parties, first appellate court by the impugned judgment itself
dismissed the application under section 5 of the Limitation Act and at the same
time passed the judgment on merits also affirming the judgment and decree of
trial court, against which second appeal is preferred, which came in hearing on
26.09.2005 and was admitted for final hearing on the following substantial
question of law :
"Whether the lower appellate Court erred in not condoning 8 days delay in
filing appeal, which was duly explained by filing affidavit, which was not
controverted by other side ?"
6. Learned counsel for the appellant/defendant submits that although trial
court decreed the respondents' suit vide judgment and decree dated 21.04.2005,
but the appellant being a widow and infirm lady could not file civil appeal
before first appellate court within prescribed period of limitation of 30 days. He
submits that during that period, she was also ill and in these circumstances
appeal was filed with delay of 8 days along with an application under Section 5
of the Limitation Act supported by affidavit with the prayer for condonation of
delay. He also submits that despite the fact that respondents/plaintiffs did not
file any reply/counter affidavit, first appellate court has by taking harsh view
dismissed the application under Section 5 of the Limitation Act by the
impugned judgment and at the same time dismissed the appeal on merits also,
which is not permissible in the eyes of law. With these submissions he prays for
allowing the second appeal.
7. Learned counsel for the respondents/plaintiffs submits that although no
reply/counter affidavit was filed by the plaintiffs/respondents before first
appellate court, but the application was opposed orally and as the application
did not contain reasonable/sufficient explanation and was sketchy, therefore,
first appellate court has rightly dismissed the application. He submits that as the
first appellate court has affirmed the judgment and decree of trial court on
merits also and the reasoning recorded by first appellate court being not illegal
or perverse, the second appeal deserves to be dismissed.
8. Heard learned counsel for the parties and perused the record.
9. Undisputedly, the appeal filed before first appellate Court was barred by
8 days only and application under Section 5 of the Limitation Act supported by
affidavit of defendant-Gulab Bai was filed seeking condonation of delay with
the contentions that as per judgment and decree dated 21.04.2005, civil appeal
was to be filed on or before 20.06.2005, but after receipt of certified copy of the
judgment of trial Court on 31.05.2005 there was marriage of appellant's son and
during these days, she fell ill also, hence the appeal could not be filed within
time. Accordingly, prayed for condonation of delay of 8 days in filing of the
appeal. For the reasons not available on record the respondents/plaintiffs did not
file written reply/counter affidavit, although opposed the application orally.
10. From perusal of impugned judgment passed by first appellate Court it is
clear that the Court has observed that the defendant has not explained the delay
of 8 days properly in the application or in the affidavit, therefore, the
application cannot be said to be filed bonafidely. Resultantly, dismissed the
application as well as civil appeal on merits.
11. It is pertinent to mention here that although the defendant did not place
any document on record in respect of marriage of son of the defendant or in
respect of her illness, but no written reply/counter affidavit was filed by the
plaintiffs/respondents, which was necessary to rebut the contentions supported
by the affidavit, therefore, in my considered opinion the delay of 8 days
occurred in filing of the appeal should have been condoned, especially in the
circumstances where there was summer vacation in between the date of passing
of the judgment and decree by trial court and filing of the appeal on 28.06.2005.
12. It is also well settled that while considering the application under Section
5 of the Limitation Act the Court should take liberal view, but it appears that not
only the first appellate court has taken harsh view, but contrary to settled law
and procedure, dismissed the civil appeal on merits also. Upon due
consideration, the application filed under Section 5 of the Limitation Act before
first appellate Court deserves to be and is hereby allowed.
13. Resultantly by deciding the substantial question of law in favour of
appellant/defendant, this second appeal succeeds and is hereby allowed and
matter is remanded to first appellate court with the direction to restore the civil
appeal to its original number and to decide the same on merits as expeditiously
as possible, without giving any unnecessary adjournments to the appellant/
defendant.
14. With the aforesaid, this second appeal is allowed and disposed off.
15. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
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