Madhya Pradesh High Court
Trishla Grah Nirman Sahakari Sanstha ... vs Rochak Grah Nirman Sahakari Sanstha on 25 March, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 25th OF MARCH, 2025
MISC. APPEAL No. 4569 of 2024
TRISHLA GRAH NIRMAN SAHAKARI SANSTHA MARYADIT
INDORE THROUGH ITS OFFICER INCHARGE MR. ISHWAR
CHANDRA
Versus
ROCHAK GRAH NIRMAN SAHAKARI SANSTHA AND OTHERS
Appearance:
Shri Veer Kumar Jain, learned Senior Advocate alongwith Shri Adarsh
Jain, learned counsel for the appellant.
Shri Vaibhav Bhagwat, learned counsel for the respondent [R-3].
ORDER
The present appeal under Section 104 read with Order XLIII Rule
1(R) of the CPC, 1908 being aggrieved by the order dated 14.03.2024 passed
by the learned IV District Judge, District Indore in MJC No. 748/2022
whereby appellant's applications under Order 9 Rule 9 of CPC and Section 5
of Limitation Act, 1963 have been dismissed.
2. Brief facts of the case are that the appellant had filed a civil suit No.
RCS-A/16/2016 against the respondents for declaration, injunction and
cancellation of registered sale deed executed by respondent Nos. 2 & 3 in
favour of respondent No. 1. The suit was fixed for hearing on 12.11.2021 for
appellant's evidence in which application under Order 17 Rule 1 of CPC was
filed for adjournment as witness was out of station for family function. The
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said application was rejected by the trial Court stating that suit is about 13
years old and was in the list of 25 cases for disposal. Thereafter, trial Court
dismissed the suit on 12.10.2021. Further, an application was filed for
restoration of original Civil Suit No. RCS-A/16/2016 under Order 9 Rule 9
of CPC alongwith an application under Section 5 of Limitation Act.
Accordingly, application was registered before learned trial Court as case
No. MJC No. 478/2022 alongwith an application under Section 5 of
Limitation Act for condonation of delay. Respondent Nos. 2 & 3 filed their
reply on the application filed under Limitation Act. After hearing both
parties, learned trial Court has rejected the application filed under Section 5
of Limitation Act and in sequence, also rejected the application filed Order 9
Rule 9 of CPC vide impugned order dated 14.03.2024. Being aggrieved by
both orders, present miscellaneous appeal has been filed
3. Learned Senior counsel for the appellant submitted that the
application was dismissed merely on the ground that the delay has not been
properly explained, whereas a liberal view has to be taken while condoning
the delay and in particular when the delay was not much. It is further the said
period was affected by the Corona Pandemic and Hon'ble Apex Court itself
relaxed the provisions of limitation from 15.03.2020 to 28.02.2022. It is also
stated that the authorized signatory Shri Dilip Sisodia was the President of
the society and during pendency, he was out of station due to family function
and also due to registration of a number of criminal cases against him. Bail
orders have also been annexed with the application (Ex.P/5, P/6, P/7, P/8,
P/9, P/10 & P/11). In those cases, he was released on bail by Hon'ble Apex
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Court, this Court as well as by trial Court. On these grounds, learned Senior
counsel prays for condonation of delay, allow the appeal and application
under Order 9 Rule 9 of CPC, consequently, pass the order to restore the suit
to its original number by setting aside the order dated 14.03.2024.
4. Per contra, counsel for the respondent/State has supported the order
impugned and contended that the appellant is a society not an individual, so
application would be filed by any of the members of the society, it is not
required to file application only by the Chairperson/President of the society.
During the pendency of the suit, authorized signatory was absconded, the
same has been admitted in para 6 of the impugned order while counsel for
the appellant saying that he was busy in his family function. He also
contended that before the Court he should be come with clean hands. Under
these conditions, prays for rejection of this appeal. Further, he stated that if
present appeal is allowed and petition is restored, heavy cost should be
imposed.
5. I have heard learned counsel for the parties and perused the record.
6. On perusal of record, it is evident that the appeal has been preferred
with a delay of almost 9 months excluding the period under direction of
Hon'ble Apex Court from 15.03.2020 to 28.02.2022 and an application under
Section 5 of Limitation Act was also filed for condonation of the aforesaid
delay. The appellate Court dismissed the application on the ground that there
is no proper reason mentioned in the application for the delay.
7. The question for determination before us is whether in the facts and
circumstances of the case, the appellate Court was justified in refusing to
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condone the delay in filing the proposed appeal and to dismiss it as barred by
limitation.
8. On this aspect, in the case of M.K. Prasad Vs. P. Arumugam, AIR
2001 SC 2497, the Hon'ble Apex Court endorsing its earlier view held as
under :-
In construing Section 5 of the Limitation act, the court has to keep
in mind that discretion in the section has to be exercised to
advance substantial justice. The court has a discretion to condone
or refuse to condone the delay as is evident from the words "may
be admitted" used in the section. While dealing with the scope of
Section 5 of the Limitation Act, this Court in Ramlal & Ors. v.
Rewa Coalfields Ltd. [AIR 1962 SC 361] held :-
"Section 5 of the Limitation Act provides for
extension of period in certain cases. It lays down,
inter alia, that any appeal may be admitted after the
period of limitation prescribed therefor when the
appellant satisfies the court that he had sufficient
cause for not preferring the appeal within such
period. This section raises two questions for
consideration. First is, what is sufficient cause; and
the second, what is the meaning of the clause
"within such period"? With the first question we
are not concerned in the present appeal. It is the
second question which has been decided by the
Judicial Commissioner against the appellant. He
has held that "within such period" in substance
means during the period prescribed for making the
appeal. In other words, according to him, when an
appellant prefers an appeal beyond the period of
limitation prescribed he must show that he acted
diligently and that there was some reason which
prevented him from preferring the appeal during
the period of limitation prescribed. If the Judicial
Commissioner has held that "within such period"
means "the period of the delay between the last day
for filing the appeal & the date on which the
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appeal was actually filed" he would undoubtedly
have come to the conclusion that the illness of
Ramlal on February 16 was a sufficient cause. That
clearly appears to be the effect of his judgment.
That is why it is unnecessary for us to consider
what is "a sufficient cause" in the present appeal. It
has been urged before us by Mr.Andley, for the
appellant, that the construction placed by the
Judicial Commissioner on the words "within such
period" is erroneous.
In construing S. 5 it is relevant to bear in mind two
important considerations. The first consideration is
that the expiration of the period of limitation
prescribed for making an appeal gives rise to a
right in favour of the decree-holder to treat the
decree as binding between the parties. In other
words, when the period of limitation prescribed has
expired the decree holder has obtained a benefit
under the law of limitation to treat the decree as
beyond challenge, and this legal right which has
accrued to the decree-holder by lapse of time
should not be light- heartedly disturbed. The other
consideration which cannot be ignored is that if
sufficient cause for excusing delay is shown
discretion is given to the court to condone delay
and admit the appeal. This discretion has been
deliberately conferred on the court in order that
judicial power and discretion in that behalf should
be exercised to advance substantial justice.
As has been observed by the Madras High Court in
Krishna v. Chathappan, ILR 3 Mad 269 :-
"Section 5 gives the court a discretion which
in respect of jurisdiction 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 nor
want of bonafide is imputable to the
appellant."
9. In this regard, it is worth to refer the decision of Hon'ble Apex
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Court in the case of Esha Bhattacharjee vs. Managing Committee of
Raghunathpur Nafar Academy reported in (2013) 12 SCC 649, after
considering the catena of cases, the Hon'ble Apex Court broadly culled out
the following principles:
i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation
of delay, for the courts are not supposed to legalise injustice but are
obliged to remove injustice.
ii) The terms "sufficient cause" should be understood in their proper
spirit, philosophy and purpose regard being had to the fact that these
terms are basically elastic and are to be applied in proper perspective
to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical
considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay
but, gross negligence on the part of the counsel or litigant is to be
taken note of.
v) Lack of bona fides imputable to a party seeking condonation of
delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not
affect public justice and cause public mischief because the courts
are required to be vigilant so that in the ultimate eventuate there is
no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception
of reasonableness and it cannot be allowed a totally unfettered free
play.
viii) There is a distinction between inordinate delay and a delay of
short duration or few days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted. That apart, the
first one warrants strict approach whereas the second calls for a
liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the courts
are required to weigh the scale of balance of justice in respect of
both parties and the said principle cannot be given a total go by in
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the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the
application are fanciful, the courts should be vigilant not to expose
the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the
approach should be based on the paradigm of judicial discretion
which is founded on objective reasoning and not on individual
perception.
xiii) The State or a public body or an entity representing a collective
cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines
taking note of the present day scenario. They are: -
a) An application for condonation of delay should be drafted with
careful concern and not in a half hazard manner harbouring the
notion that the courts are required to condone delay on the bedrock
of the principle that adjudication of a lis on merits is seminal to
justice dispensation system.
b) An application for condonation of delay should not be dealt with
in a routine manner on the base of individual philosophy which is
basically subjective.
c) Though no precise formula can be laid down regard being had to
the concept of judicial discretion, yet a conscious effort for
achieving consistency and collegiality of the adjudicatory system
should be made as that is the ultimate institutional motto.
d) The increasing tendency to perceive delay as a non-serious matter
and, hence, lackadaisical propensity can be exhibited in a non-
challan manner requires to be curbed, of course, within legal
parameters.
10. In conspectus of the aforesaid law, the matter has been considered.
The Limitation law is a procedural law and approach for consideration of
delay should be liberal, sympathetic and justice oriented. Generally, the delay
may be condoned unless and until it is found inordinate and malafide. The
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purpose of Limitation Act is no way to defeat the justice on account of
technicalities unless the motive is found to be malafide. In the case at hand,
petitioner was affected by Corona Pandemic and was also in jail for
sometime. It is further submitted that as and when Dilip Sisodia, President of
the society was free from his criminal cases, application for condonation of
delay has been filed, supported with an affidavit. As such the delay of
approximately 9 months in filing the application can be condoned, as the
reasons explained for the delay seems to be satisfactory. Under these
conditions application for condonation of delay and application for
restoration may be considered. After deducting the period of Corona
Pandemic, delay comes approximately six months in filing the application.
So it can be condoned looking to the reasons assigned in the application,
seem to be satisfactory.
So far as to impose the cost is concerned, certainly, petition has been
filed after a delay of approximately six months. However, looking to the
reasons assigned in the application and submissions of learned Senior
Counsel, it will be appropriate to impose cost of Rs.25,000/- in this regard.
11. Accordingly, the delay of approximately six months is hereby
condoned subject to deposit of Rs.25,000/- before the Madhya Pradesh High
Court Legal Services Committee, Indore within a period of seven working
days from the date of this order and thereafter compliance report be filed
before the Registry. Consequently, the impugned order dated 14.03.2024 is
hereby quashed and the case is remitted back to the concerned trial Court.
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Parties are directed to appear before the concerned appellate Court on
15.04.2025. The learned trial Court is directed to consider and decide the
case afresh on merits in accordance with law.
12. With the aforesaid, the appeal stands disposed of.
13. Let the record of the Court below along with certified copy of this
order be sent to the concerned appellate Court for necessary information and
compliance.
Certified copy as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
