[Cites 11, Cited by 0]
Madhya Pradesh High Court
Murti Shri Ramchandra Ji Virajman ... vs Ahivaran Singh on 12 January, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:1478
1 C.R.No.53/2015
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 12th OF JANUARY, 2026
CIVIL REVISION No. 53 of 2015
MURTI SHRI RAMCHANDRA JI VIRAJMAN MANDIR THR AND
OTHERS
Versus
AHIVARAN SINGH AND OTHERS
Appearance:
Shri S.K. Shrivastava- Advocate for the applicants.
Shri N.K.Gupta Senior Advocate with Shri Saket Sharma- Advocate for the
respondent No.1.
Shri G.K.Agrawal- Government Advocate for the State.
ORDER
This civil revision under Section 115 of CPC has been filed against order
dated 06/07/2015 passed by Second Additional District Judge, Gohad, District
Bhind in Civil Appeal No.68-A/2014 by which application filed by respondent
under Section 5 of Limitation Act for condonation of delay in filing a civil
appeal under Section 96 of CPC has been allowed and the delay of
approximately 15 years has been condoned.
2. The factual matrix of the case revolves in a very narrow compass,
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therefore, the same can be understood by narrating the facts in a tabular form:-
Sr. No. Date Event
1 29/11/1997 An ex-parte decree was passed against the
respondent and in favour of applicant.
2 22/12/1997 An application under Order 9 Rule 13 of CPC was
filed.
3 08/10/2002 Application filed under Order 9 Rule 13 of CPC
was rejected.
4 06/09/2004 Miscellaneous appeal against the order of rejection
of application under Order 9 Rule 13 of CPC was
dismissed.
5 11/01/2005 W.P.No.20/2005 against the dismissal of
miscellaneous appeal was dismissed.
6 24/02/2005 A civil suit was filed for setting aside of ex-parte
decree as well as for declaration that respondent
was not served.
7 08/04/2005 The civil suit was dismissed under Order 7 Rule 11
of CPC holding that the suit is not maintainable.
8 23/01/2006 Civil appeal filed before the Ist Appellate Court
was dismissed.
9 06/02/2009 Second appeal was dismissed by High Court.
10 11/01/2012 Review petition was dismissed by High Court.
11 12/07/2012 SLP was dismissed by Supreme Court.
12 05/09/2012 Civil Appeal was filed under Section 96 of CPC
against an ex-parte judgment and decree alongwith
an application filed under Sections 5 and 14 of the
Limitation Act.
3. From the narration of above mentioned dates, it is clear that civil appeal
was filed on 05/09/2012 alongwith an application filed under Sections 5 and 14
of the Limitation Act. It was the case of applicants that since, applicants were
prosecuting their cause before a wrong forum with due diligence, therefore, the
time spent by applicants before different forum is liable to be excluded while
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calculating the period of limitation.
4. The Appellate Court in paragraph 17 of the impugned order has held that
the provisions of Section 14 of the Limitation Act are not applicable because
the respondent was prosecuting his cause before the Courts having jurisdiction.
However, surprisingly the Appellate Court came to a conclusion that
respondent had made out a sufficient cause for condonation of delay of 15
years.
5. Challenging the order passed by Appellate Court, it is submitted by
counsel for respondent that Full Bench of this Court in the case of Archana
Kumar and Another Vs. Purendu Prakash Mukherjee and Another
reported in 2000 (2) MPLJ 491 has held that not only an application under
Order 9 Rule 13 of CPC is maintainable against an ex-parte decree, but at the
same time, a civil appeal under Section 96 of CPC is also maintainable.
Similarly, counsel for applicants has relied upon the judgment passed by a Co-
ordinate Bench of this Court in the case of Narmada Club Registered Society
and Another Vs. P.K.Tare reported in 2006 (1) MPLJ 33 and submitted that
Co-ordinate Bench has held that both the remedies are simultaneous and not
consecutive. Counsel for applicants has also relied upon the judgment passed
by a Co-ordinate Bench of this Court in the case of Prakash S/o Shyamlal
Khatik Vs. Uma Chaturvedi and Others reported in 2016 (1) MPLJ 222.
The reliance has also been placed on the judgment passed by Kerala High
Court in the case of Babu Kesavan and Others Vs. Prakasan reported in
2018 1 KLJ 507 {decided on 10/10/2017 in RFA No.311 of 2017 (B)},
judgment passed by Bombay High Court in the case of Amjad Ali Shafi Khan
Vs. Abdul Hameed Abdul Gai Shaikh reported in 2019 2 MhLJ 930
{decided on 22/12/2018 in Civil Application (F) No.3487 of 2018 in First
NEUTRAL CITATION NO. 2026:MPHC-GWL:1478
Appeal (ST.) No.17594 of 2018 in S.C. Suit No.3877 of 2008} as well as
judgment passed by Chhattisgarh High Court in the case of Vinod Kumar
Thawani and Another Vs. Firm Ganeshilal Gulab Chand, Partnership
Firm reported in 2008 1 C.G.L.J. 368 (decided on 26/11/2007 in S.A.No.213
of 2007).
6. Per contra, by referring to judgment passed by Full Bench of this Court
in the case of Archana Kumar (supra), it is submitted by counsel for
respondent that since, a civil appeal under Section 96 of CPC is also
maintainable against an ex-parte decree, therefore, Appellate Court did not
commit any mistake by exercising its discretion in favour of respondent. It is
further submitted that unless and until, the discretion is found to be wholly
justify, this Court should not interfere with discretionary power exercised by
Appellate Court. It is further submitted that while appreciating the application
for condonation of delay, the Court must adopt pragmatic and not pedantic
view as held by the Supreme Court in the case of K. Subbarayudu and
Others Vs. Special Deputy Collector (Land Acquisition) reported in (2017)
12 SCC 840 and by relying upon the judgment passed by the Supreme Court in
the case of N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7
SCC 123, it is submitted that the word "sufficient cause" should be construed
liberally and the excitability of explanation for the delay is the sole criteria and
length of delay is not relevant. It is submitted that in absence of anything
showing malafide or deliberate delay as dilatory tactics, the Court normally
condoned the delay. It is further submitted that the Supreme Court has also
held that while doing so, Court should also keep in mind the consequent
litigation expenses to be incurred by opposite party and should compensate
him accordingly, and, therefore, respondent is ready to compensate the
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applicant, for the wastage of valuable time of applicants as well as for expenses
which they were compelled to incur. However, it is submitted that the
compensation or cost should be in thousands only.
7. Heard the learned counsel for the parties.
8. It is well established principle of law that while condoning the delay,
Court should not get swayed away by period of limitation and should consider
as to whether the aspirant has shown sufficient cause for condonation of delay
or not? In the present case, this Court has already reproduced the necessary
dates in tabular form which clearly indicates that although, the ex-parte decree
was passed on 29/11/1997 and writ petition was dismissed on 11/01/2005, still
respondent did not take a decision to file a civil appeal under Section 96 of
CPC against an ex-parte decree suffered by him. The scope of proceedings
under Order 9 Rule 13 of CPC are completely different from that of civil
appeal under Section 96 of CPC. In proceeding under Order 9 Rule 13 of CPC,
the challenger cannot assail the order on the merits whereas by filing a civil
appeal under Section 96 of CPC, the challenger/applicants can always try to
demolish the case of plaintiff by referring to ex-parte pleadings as well as the
ex-parte evidence led in the suit. The Full Bench of this Court in the case of
Archana Kumar (supra) has not dealt with the question of limitation and
merely has dealt with the question as to whether after rejection of application
filed under Order 9 Rule 13 of CPC, a civil appeal under Section 96 of CPC is
maintainable or not? Since, question of limitation was not raised before the
Full Bench of this Court in the case of Archana Kumar (supra), therefore, the
reliance on the said judgment by counsel for respondent will not come to his
rescue because in the present case, the question is not with regard to
maintainability of civil appeal under Section 96 of CPC, but the question is
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with regard to the fact as to whether respondent has made out a sufficient cause
for condonation of delay or not.
9. Although, respondent had filed an application under Sections 5 and 14 of
the Limitation Act claiming that he was prosecuting his cause before wrong
forum, therefore, time spent by him before wrong forum is liable to be
excluded, but the Appellate Court in paragraph 17 of the impugned order has
held that since, respondent had approached the correct forum, therefore, the
provisions of Section 14 of Limitation Act are not applicable.
10. This Court is unable to accept the said finding given by Appellate Court.
If a person has filed a civil suit knowing-fully well that civil suit is not proper
remedy, but the proper remedy is to file a civil appeal against the ex-parte
judgment and decree, then merely because the civil suit was filed before the
Court having jurisdiction to entertain such civil suit would not take away
applicability of Section 14 of Limitation Act. In the considered opinion "wrong
forum" has to be interpreted in a different manner, i.e. if the cause for
institution of civil suit was not available, then the civil suit filed before the
Court having jurisdiction will not take away the applicability of Section 14 of
the Limitation Act. Once, this Court has disagreed with the reasoning given by
Appellate Court in paragraph 17 of the impugned order, therefore, now the
only question for consideration is as to whether respondent had made out
sufficient cause for condonation of delay in filing a civil appeal or not?
11. The Co-ordinate Bench of this Court in the case of Narmada Club
Registered Society (supra) has held that the remedy under Order 9 Rule 13
CPC and a civil appeal under Section 96 of CPC are simultaneous and not
consecutive. In same case, a person under a wrong impression that since he has
already filed an application under Order 9 Rule 13 of CPC may not file a civil
NEUTRAL CITATION NO. 2026:MPHC-GWL:1478
appeal, then whether the delay in filing the appeal under Section 96 of CPC
will be liable to be condoned or not will depend on the facts and circumstances
on such case. However, even by adopting a most liberal and pragmatic view as
submitted by Shri Gupta, if this Court excludes period spent by respondent in
prosecuting his application filed under Order 9 Rule 13 of CPC upto the stage
of High Court, still this Court is of considered opinion that respondent was
unauthorizedly and with a malafide intention had adopted a dilatory tactics to
delay proceedings by filing civil suit. Merely, by saying that appellant was
given a wrong advice, therefore, he had filed a civil suit may not be a very
important aspect in the present case because the civil suit was filed on
22/02/2005 and was dismissed under Order 7 Rule 11 of CPC on 08/04/2005,
i.e. within a period of two months from the date of institution. Thereafter,
appellant contested that case up to the stage of Supreme Court and everywhere
the suit was dismissed as not maintainable. Once applicants were already
aware of the fact that his civil suit has already been dismissed on the ground of
maintainability and the Trial Court had already held that since, sufficiency of
absence of respondent in civil suit has already been tested under Order 9 Rule
13 of CPC and has been finally adjudicated by High Court, then such civil suit
is not maintainable, still respondent took a bold step to peruse that cause up to
the stage of Supreme Court.
12. Be that whatever it may be.
13. The civil suit was filed in the year 2005, whereas judgment was already
pronounced by Full Bench in the case of Archana Kumar (supra) in the year
2000, therefore, applicants or their legal advisers were well aware of the fact
that even if the application under Order 9 Rule 13 of CPC was already
dismissed, still respondent had a remedy of filing a civil appeal under Section
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96 of CPC. Incompetency of a lawyer cannot be presumed unless and until, it
is specifically pleaded and established by respondent.
14. Under these circumstances, this Court is unable to convince itself that
none of counsel right from the stage of filing of civil suit till the filing of SLP
had misguided the respondent and had not disclosed him about the legal
remedy available to him against the ex-parte decree. Thus, it is clear that in
spite of fact that legal position was very clear and well established and
respondent was being represented by his fully competent lawyers, still if he
decided not to prefer an appeal, then it has to be treated as conscious decision
on the part of respondent not to file a civil appeal under Section 96 of CPC.
Therefore, this Court has no hesitation in holding that in fact respondent has
adopted a dilatory tactics to ensure that applicants do not get the fruits of ex-
parte decree.
15. Counsel for respondent is also right in holding that the Court should
adopt pragmatic and not pedantic approach while deciding the application filed
under Section 5 of Limitation Act. Pragmatic view means a practical, and
realistic view and would also include that the decree holder should not be made
to run from pillar to post to get the fruits of the decree. Pragmatic view cannot
be taken as a one sided view, and the conduct of judgment debtor in adopting
dilatory tactics to avoid the enforcement of ex-parte decree should also be kept
in mind.
16. For the reasons mentioned above, this Court is unable to itself convince
with the reasoning assigned by Appellate Court. It is true that once Appellate
Court has exercised its discretion in favour of judgment debtor/respondent,
then such discretion should not be disturbed in a light manner. This Court has
considered each and every steps taken by respondent and is of the view that the
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reasons assigned by Appellate Court are not judicious and are the result of
mechanical approach adopted by Appellate Court.
17. Under these circumstances, order dated 06/07/2015 passed by Iind
Additional District Judge, Gohad, District Bhind in Civil Appeal No.68-
A/2014 is hereby set aside and accordingly, application filed by respondent for
condonation of delay is dismissed, and Civil Appeal No.68-A/2014 is hereby
dismissed as barred by time.
18. Accordingly, this civil revision succeeds and is hereby allowed.
(G.S. Ahluwalia)
Judge
PjS/-
PRINCEE BARAIYA
2026.01.14 17:07:16 +05'30'
