Madhya Pradesh High Court
Smt. Kamini vs Smt. Deepa on 2 May, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
WRIT APPEAL NO. 1058 of 2023
SMT. KAMINI
Vs
SMT. DEEPA & ORS.
Appearance:
Shri Siddharth Sharma - Advocate for appellant.
None for the respondents No.1 to 4.
None for the respondents No.7 and 8.
Shri K.K. Prajapati - Govt. Advocate for respondent
No.9/State.
Reserved on : 22/04/2025
Delivered on : 02/05/2025
ORDER
Per: Justice Milind Ramesh Phadke
The present intra-Court appeal, under Section 2(1) of Madhya
Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam,
2005 has been filed by the appellant assailing the order dated
20.06.2023 passed by learned Single Judge in M.P. No.2464 of
2022; whereby, while allowing the petition the order dated
12.05.2022 passed by Additional Commissioner, Gwalior Division in
Second Appeal No.641/2016-17 was set-aside and that of the order
dated 22.07.2017 passed by SDO in First Appeal No.38/2013-14 was
upheld.
2. The main ground for assailing the order passed by learned
Single Judge is that though the first appeal preferred before SDO by
present respondents No.1 to 4 was barred by limitation, without
there being any application under Section 5 of Limitation Act
supported by an affidavit, the delay was condoned and while hearing
the appeal on merits it was allowed and the order of mutation passed
by Tehsildar dated 22.05.2012 whereby name of husband of present
appellant was mutated in revenue records on the basis of Will was
set-aside and though this fact was appreciated by learned Additional
Commissioner and therefore, quashed the order passed by SDO in
first appeal, but learned Single Judge ignoring the aforesaid aspect
had allowed the petition and set-aside the order passed by learned
Additional Commissioner which is per se illegal.
3. Apart from the aforesaid argument, no other arguments were
raised before this Court.
4. None for the respondents No.1 to 4 even after service of
notices through publication.
5. None for even respondents No.5 to 8.
6. Shri K.K. Prajapati, learned Government Advocate for
respondent No.9/State submitted that no illegality has been
committed by learned Single Judge in allowing the appeal as it is
settled law that the Will related dispute can only be discussed by the
Civil Court and not by the Revenue Courts and as the mutation of
the name of husband of present appellant was on the basis of a
disputed Will, learned Single Judge had rightly quashed the order of
Additional Commissioner and restored the order of SDO.
7. Heard counsel for the parties and perused the record.
8. Though the aforesaid ground of limitation was not raised
before the writ Court and therefore, was not addressed upon but
looking to the legality of the issue, this Court deems it appropriate to
address upon the said aspect before considering the rival
submissions.
9. Section 3 of the Limitation Act provides bar of limitation.
Section 3 is quoted as under:-
"3. Bar of limitation.-- (1)Subject to the provisions contained in
Section 4 to 24 (inclusive), every suit instituted, appeal
preferred, and application made after the prescribed period
shall be dismissed, although limitation has not been set up as a
defence."
10. Section 5 of the Limitation Act provides for extension of
prescribed period in certain cases and the same is quoted as under:-
"5. Extension of prescribed period in certain cases.-- Any
appeal or any application, other than an application under
any of the provisions of Order XXI of the Code of Civil
Procedure, 1908, may be admitted after the prescribed period
if the appellant or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making the
application within such period.
Explanation.--The fact that the appellant or the applicant was
misled by any order, practice or judgment of the High Court
in ascertaining or computing the prescribed period may be
sufficient cause within the meaning of this section."
11. Section 5 of Limitation Act provides that an appeal or an
application may be admitted after the prescribed period if the
appellant or the applicant satisfies the Court that he had sufficient
cause for not preferring the appeal or making the application within
such period. Section 5 in fact has been incorporated to save those
innocent litigants who either under misapprehension or
miscalculation, under bona fide belief or because of some inevitable
circumstances could not bring the proceedings before the Court
within limitation. It is the power which is given to the Court to
condone delay and extend the limitation. It is for the Court to satisfy
itself that the sufficient cause exists or not to condone the delay. If
the Court on the facts presented before it comes to the conclusion
that the delay deserves to be condoned then the Court is duty bound
to save the party from unnecessary sufferance's and should permit
the appellant to go into the arena of their legal rights of the matter
after removing the hurdle of limitation.
12. The question whether Section 3 of Indian Limitation Act
would control and govern the powers given to the Court under
Section 5 of Limitation Act would not be of importance. Section 3
merely provides that if the proceedings are not instituted within
limitation, the same are liable to be dismissed even if the limitation
has not been set up as a defence. But Section 5 gives the powers to
the Court to extend the period of limitation if there is a sufficient
cause for not drawing the proceedings well within limitation. In fact
Section 5 is in the nature of proviso to Section 3 and would dilute
the rigour of Section 3.
13. In case of Markland Pvt. Ltd. And Ors. Vs. State of
Gujrat; reported in AIR 1989 Guj 44, the Gujarat High Court held
that Section 5 of the Limitation Act only requires the appellant or the
applicant to satisfy the court that he had sufficient cause for not
preferring the appeal or filing the revision within the prescribed
period. This section does not require that there should be a written
application for condonation of delay. For reference Paragraph No. 9
of the judgment in case of Markland Pvt. Ltd. And Ors. Vs. State
of Gujrat (supra) is quoted as under:-
"9. The learned counsel for the petitioners submitted that the
revision application as provided under Section 9 of the Act is
required to be filed within a period of sixty days from the date of
the order under challenge. In this case the revision application is
filed after a period of about ten months from the prescribed date
of limitation. As submitted by the learned counsel for the
petitioners the Tribunal may condone the delay, but in the instant
case there was no application for condonation of delay. Hence,
in absence of application for condonation of delay, the delay
could not have been condoned the contention is misconceived.
There is no dispute with regard to the fact that provisions of
section 5 of the Limitation Act do apply to these proceedings.
Section 5 of the Limitation Act only requires the appellant or the
applicant to satisfy the Court that he had sufficient cause for not
preferring the appeal or making the revision application within
such period. The section does not require that There should be a
written application for condonation of delay. In fact this is the
view which has been taken by this Court in the case of Naran
Anneppa Shethi v. Jayantilal Chenille Shah,
MANU/GJ/0067/ 1987: AIR 1987 Guj 205 and in the case of
Patel Purshottamdas Motilal v. Patel Chhotabhai Motibhai,
(1979) 20 GLR 918. Therefore, the contention that the Tribunal
ought not to have condoned the delay in absence of written
application for condonation of delay has no merit and the same
is required to be rejected."
14. In another decision reported in AIR 1936 All 666
(Kulsoomun Nissa and Ors. Vs. Noor Mohammad and Ors.), the
Allahabad High Court has held as under:-
"The first ground on which the appeal has been dismissed by
the lower appellate Court is that the plaintiffs had not made
any formal application for an extension of time under
Section 5, Limitation Act, and that, therefore, their appeal
against Hakim Shyam Sundar Lal was beyond time. In our
opinion the Court below has erred in exercising its discretion
in this matter. The reason why Hakim Shyam Sundar Lal's
name was omitted from the names of the respondents
obviously was that his name did not find a place in the
decree. He was impleaded later on within 30 days of the
substitution of his name. We think that the lower Court
should have allowed the defendant to get round the technical
objection of the absence of a formal application for
extension of time."
15. The Hon'ble Supreme Court in a very recent judgment
Dwarika Prasad (D) Thr. LRs. Vs. Prithvi Raj Singh; reported in
2024 SCC Online SC 3828 relied upon the judgment of Supreme
Court in case Bhagmal and others vs. Kunwar Lal and others
reported in 2010 (12) SCC 159 and held in paragraph No. 12 as
under:
"12. From the above cases, it is clear that there was no need
to file a separate application for condonation of delay in the
present case as well. The High Court has erred in taking a
hyper technical view and concluding that there was violation
of mandatory provision of law. Endorsing such a view would
effectively mean ignoring the purpose of judicial procedure.
The procedure cannot stand in the way of achieving just and
fair outcome. In the present case, the Appellant acted bona
fide and diligently. His conduct does not violate any rule of
law."
16. Similar view has been taken by this Court in Suresh
Kumar and others Vs. Firm Kurban Hussain Taiyab Ali and
others reported in AIR 1996 MP 151.
17. In view of the law laid down by Hon'ble Supreme Court,
this Court and various other High Courts, this Court finds that for
condonation of delay under Section 5 of the Limitation Act, a formal
application would not be required, if the facts presented before the
court satisfies the judicial consciousness of the Court that the
applicant before it was prevented from sufficient cause in bringing
the proceedings well within limitation. In case, instead of moving a
formal application for condonation of delay, averments has been
made by a party relating to sufficient cause for not initiating the
proceedings well within time in the application or memo of appeal or
revision supported by an affidavit with a prayer made therein for
condonation of delay, will not be fatal for want of separate
application for condonation of delay. If the Court is of the opinion
that in absence of formal application, the delay cannot be condoned
then, it is always the duty of the Court to give an opportunity to the
appellant before it to move an application explaining the cause for
delay and seek condonation under Section 5 of the Limitation Act.
18. Thus, the argument advanced by learned counsel for the
appellant has no force.
19. As no other ground has been raised by learned counsel for
the appellant, this Court finds that learned Single Judge had rightly
set-aside the order passed by Additional Commissioner whereby it
was held that Sub-Divisional Officer was not right in condoning the
delay in absence of any formal application under Section 5 of the
Limitation Act, thus, it is held that no illegality or perversity has
been committed by learned writ court in allowing the writ petition
and holding that the question of disputed Will can only be addressed
by Civil Court and not by Revenue Court.
20. Consequently, the present writ appeal fails and is hereby
dismissed.
(MILIND RAMESH PHADKE) (RAJENDRA KUMAR VANI)
ojha JUDGE JUDGE
