Bandhu vs The State of Madhya Pradesh

U.C. Maheshwari, J.—Respondent nos. 2 to 5 being co-respondents with the petitioner before the appellate court, therefore their presence are not required to adjudicate this writ petition. The same could be effectively adjudicated only in presence of the petitioner and respondent no. 1, the sole appellant before the appellate court. Consequently the notice against respondent nos. 2 to 5 are hereby dispensed with. This case is listed today for admission and consideration of IA No. 15819/13, an application for grant of stay against further proceeding of the impugned appeal pending before the appellate court but looking to the nature of the question involved in it, instead to hear the matter on admission with the consent of the parties, the same is heard for final disposal.

The petitioner/respondent/plaintiff has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 8.10.2013, (Ann. P-1), passed by the District Judge, Baidhan in unregistered F.A./13, whereby in the appeal of the respondent No. 1 by allowing its application filed u/s 5 of the Limitation Act, the entire delay in filing the same has been condoned.

The petitioner''s counsel after taking me through the papers placed on record alongwith the impugned order argued that in the trial court when the impugned suit was pending, the case was initially proceeded ex parte against the respondent No. 1 and on filing an application on its behalf under Order 9, Rule 7 of the CPC for setting aside the ex parte order, the same was dismissed, vide order dated 2.7.2009 and subsequently such order was not challenged by the respondent No. 1 by way of the revision or the petition. Pursuant to that the case was proceeded further and the suit of the petitioner was decreed ex parte on dated 30.11.2010. Since then for a longer period till filing the impugned appeal no step was taken on behalf of the respondent No. 1 either to set aside such ex parte decree or to file the appeal within the prescribed limitation. Subsequently, near about after more than three years from the date of passing the impugned judgment and decree, the impugned appeal was filed alongwith aforesaid application u/s 5 of the Limitation Act with a prayer for condoning the alleged delay in filing the appeal. Inter alia in such application, it is contended that the State Authority came to know about such decree when the same was filed before some revenue court for obtaining appropriate order and to comply with the same, on which the officials of the State immediately by adopting the process filed the same before the appellate court. In continuation, he said that such explanation of the State - authority to condone the delay was neither reliable nor could be treated to be sufficient cause for condoning the alleged delay as per requirement of Section 5 of the Limitation Act because case was proceeded ex parte was very well in the knowledge of the authority of respondent No. 1 and in such premises, on passing the ex parte decree, the authority of respondent No. 1 could have filed the appeal within the prescribed limitation and in such premises, the authority is not entitled to get any benefit on account of its own fault. Such application was opposed seriously by the petitioner before the appellate court on the aforesaid ground, but by dismissing his objection by holding the cause, as stated in the application to be sufficient, the same was allowed and entire delay in filing the impugned appeal has been condoned. Such order is not sustainable under the law and prayed to set aside the impugned order and dismiss the aforesaid application of respondent No. 1 by admitting and allowing the petition.

On the other hand, State''s counsel by justifying the impugned order said that the same being based on proper appreciation of the available factual matrix and the legal position does not require any interference at this stage. In continuation he said that there is settled proposition that while dealing with the application of Section 5 of the Limitation Act, besides the sufficient cause, the court is also bound to take into consideration the stake of the litigation with justice oriented approach and in such premises, by condoning the alleged delay in filing the appeal, the matter should be decided on merits rather than dismissing the same only on technical ground of limitation and prayed for dismissal of this petition.

Having heard the counsel, keeping in view the arguments, advanced, I have carefully gone through the papers placed on record alongwith the impugned order.

It is apparent that the impugned suit is related to land. As per allegation of the petitioner, he has perfected the title over such land as owner and Bhumiswami and in such premises, the decree has been rightly passed by the trial court while on behalf of the State, it appears that such appeal is to be contested on merits in the light of some statutory provision and the available facts, so in such premises, the serious question of the title of the land is in dispute between the parties. The same requires adjudication by the appellate court on merits. So keeping in view such stake of the litigation, firstly, I am of the view that the appellate court has not committed any error in condoning the delay and directing to hear the appeal on merits.

Apart the aforesaid, it is settled proposition of law that while dealing with the application u/s 5 of the Limitation Act, the court should adopt lenient view with justice oriented approach to do justice between the parties of the matter rather than dismissing the matter on the question of technical ground of limitation and in the case at hand.

It is apparent on record that initially after filing the suit the case was proceeded ex parte against the respondent No. 1. On filing the application under Order 9, Rule 7 of CPC before the trial court on 11.9.2008, the same was dismissed on 2.7.2009 and opportunity to the respondent to participate in the matter was refused. So subsequently no one appeared on behalf of the respondent before the trial court and in such premises, information about passing the ex parte decree was not received by the authorities of the respondent No. 1. Subsequently when such decree was submitted before the revenue authorities for obtaining some order or to comply with the same, then only such fact came into knowledge of authorities of respondent, on which the impugned appeal alongwith aforesaid application was filed. In such premises, I am of the considered view that proper explanation regarding entire delay in filing the appeal has been made out by the authorities of respondent No. 1. So in such premises also, the appellate court has not committed any error in holding the cause stated by the petitioner as sufficient cause to condone the delay as per requirement of Section 5 of the Limitation Act. In view of aforesaid discussion, I have not found any perversity, infirmity, illegality, irregularity or anything against the property of law in the order impugned. Consequently this petition being devoid of any merits, deserves to be and is hereby dismissed at the stage of motion hearing.