Madhya Pradesh High Court
Jagdeesh Prasad vs Rajkishore (Dead) Thr. Lrs. Smt. Jeewan ... on 9 May, 2019
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HIGH COURT OF MADHYA PRADESH
M.A. No.2578/2019
(Jaagdeesh Prasad Vs. Rajkishre dead through LRs. Jeevanbai & ors.)
Jabalpur, Dated :09.05.2019
Ms. Sudipta Choubey, learned counsel for the
appellant.
Shri Ishteyaq Husain, learned counsel for the
respondents.
With the consent of learned counsel for the parties, heard finally.
This appeal is preferred against the order dated 04.04.2019, passed by First Additional District Judge, Sohagpur, district Hoshangabad in MJC No.27/2019, whereby the application under Section 5 of the Limitation Act filed alongwith an application under Order 9 Order 13 of the C.P.C. has been rejected, resulting in consequential dismissal of application under Order 9 Rule 13 of the C.P.C.
Briefly stated, the respondents filed a suit for specific performance bearing No.5-A/2008, which was decreed exparte on 01.10.2008. The appellant thereafter under some mistaken advise, filed a separate suit bearing No.02- A/2010, for setting aside the exparte decree dated 01.10.2008 in favour of plaintiff/respondent in C.S. No.5- 2 HIGH COURT OF MADHYA PRADESH M.A. No.2578/2019 (Jaagdeesh Prasad Vs. Rajkishre dead through LRs. Jeevanbai & ors.) A/2008, alleging that the decree has been fraudulently obtained on the agreement to sale, which is a fabricated document.
The respondent filed an application under Order 7 Rule 11 of the C.P.C. for dismissal of plaint, which was rejected on 27.02.2010 by the trial Court. Aggrieved, the respondent thereafter filed a civil revision bearing C.R. No.469/2010, before this Court. The civil revision came to be allowed in favour of the respondent on 16.02.2016. On 03.05.2016, the respondent informed the Court below that the civil revision has been allowed, hence the suit. C.S. No.02-A/2010 be dismissed and accordingly the civil suit was dismissed by order dated 03.05.2016. It is stated that when the appellant came to know about the dismissal, he made an enquiry and after engaging the counsel filed an application under Order 9 Rule 13 of the C.P.C. alongwith an application under Section 5 of the Limitation Act for setting aside the exparte decree, which was dismissed by the impugned order.
The contention of the learned counsel for the appellant is that the appellant filed the Civil Suit C.S. No.2-A/2010 on 3 HIGH COURT OF MADHYA PRADESH M.A. No.2578/2019 (Jaagdeesh Prasad Vs. Rajkishre dead through LRs. Jeevanbai & ors.) the wrong advise of the counsel. It is contended that due to the mistake of the counsel, the party cannot be made to suffer.
Learned counsel for the respondent, on the other hand, supported the impugned order. It is stated that the appellant was the knowledge of the order dated 01.10.2008, since he filed C.S. No.02-A/2010 further even after the civil revision was allowed, he did file the application under Order 9 Rule 13 of the C.P.C. and filed the same with a further delay of more than a year.
It is seen from the record that the trial Court has dismissed the application under Section 5 of the Limitation Act for the reason that despite knowledge, the application under Order 9 Rule 13 was filed with a delay of nearly 18 months.
In the case of Improvement Trust Ludhiyana Vs. Ujagar Singh and another (2010) 6 SCC 786 the Supreme Court has observed :-
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HIGH COURT OF MADHYA PRADESH M.A. No.2578/2019 (Jaagdeesh Prasad Vs. Rajkishre dead through LRs. Jeevanbai & ors.) "16. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter.
19. In our opinion, the ends of justice would be met by setting aside the impugned orders and the matter is remitted to the Executing Court to consider and dispose of the appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities."
In the present case also, the appellant had taken all possible steps to prosecute the matter as was advised to him by his counsel. He would not have gained in any manner, whatsoever by filing the application under Order 9 Rule 13 of the CPC beyond the period of limitation. There is no presumption that the delay is occasioned deliberately or on account of culpable negligence or on account of the malafides. A litigant does not stand to benefit by restoring to delay. Infact he runs to its serious disadvantages 5 HIGH COURT OF MADHYA PRADESH M.A. No.2578/2019 (Jaagdeesh Prasad Vs. Rajkishre dead through LRs. Jeevanbai & ors.) Hence, it does not appear that the appellant had any underhand motive in filing the suit before the trial Court or for filing the application under Order 9 Rule 13 of the C.PC with delay. Therefore, the same could be attributed to the advise of the counsel. Under the circumstances, the delay caused on account of wrong advise of the counsel is sufficient cause to condone the delay.
It is also noted that the delay was not huge, which could not have been condoned without putting the respondent to harm or prejudice. It is the duty of the Court to see that substantial justice is done between the parties by disposing of the matter on merits.
For the aforesaid reasons, the impugned order passed by the trial Court is hereby set aside as a consequence the matter is remitted to the trial Court for deciding the appellant's application under Order 9 Rule 13 of the C.PC at an early date on merits.
The appeal is allowed subject to payment of cost of Rs.3,000/- (Rupees Three Thousand) to be paid by the 6 HIGH COURT OF MADHYA PRADESH M.A. No.2578/2019 (Jaagdeesh Prasad Vs. Rajkishre dead through LRs. Jeevanbai & ors.) petitioner online in the National Defence Fund (NDF) within a period of three weeks from today and the receipt thereof be filed before the trial Court. Payment of cost is a condition precedent, without which the appellant would not be allowed to prosecute his case.
With the aforesaid direction, this appeal stands finally disposed of.
(Nandita Dubey) Judge gn Digitally signed by GEETHA NAIR Date: 2019.05.15 16:00:39 +05'30'