Madhya Pradesh High Court
Bhuvneshwar Prasad Shukla vs Ramashray on 27 February, 2017
WP-15265-2016
(BHUVNESHWAR PRASAD SHUKLA Vs RAMASHRAY)
27-02-2017
Shri Sachin Yadav, learned counsel for the petitioners.
Ms. Neelam Goel, learned counsel for the respondents.
This petition under Article 227 of the Constitution of India has been filed against an order dated 16.08.2016 allowing the application under Order 22 Rule 9 r/w Section 151 of the C.P.C. & Section 5 of the Limitation Act setting aside the abatement and to substitute the LRs of the appellant Ramswroop on record.
In the present case, the first appeal was dismissed as barred by limitation against which S.A.No.620/2011 was filed. In the said appeal this Court has framed the question whether the appellate Court committed error to dismiss the appeal as time barred. When the appeal came for hearing on 10.02.2016 parties have not brought to the notice of this Court regarding death of one of the appellants in Second Appeal. However, the order was passed on 10.02.2016 setting aside the judgment of the lower appellate Court dismissing the appeal on the ground of limitation and directed to decide the appeal on merit. Thereafter, on the date of appearance an application was submitted for substitution of LRs of the co-appellant Ramswaroop which was allowed by the order impugned.
In such circumstances, the fact remains that neither lower appellate Court nor this Court has decided the appeal on merit and the remand has been directed condoning the delay in filing the First Appeal before the lower appellate Court and to decide such appeal after restoration on merit. On the date of tendering the appearance the application was filed which was allowed by the order impugned.
After hearing learned counsel appearing on behalf of both the parties and on consideration of the judgments in the cases of Santosh Kumar Vs. Nandalal reported in AIR 1963 Calcutta 289 and Hiralal Rupdeo Mandloi Vs. Deep reported in 1960 JLJ 415 which are supplied by both the parties and looking to the facts of the case because even the High Court has not decided the appeal on merit and is merely remitted back to the lower appellate Court after condoning the appeal to decide the appeal on merit. Therefore, in such circumstances, in place of going into the technicalities and looking to the delay in applying for setting aside the condonation of delay and for the reasons as stated by the lower appellate Court in my considered opinion the order impugned do not warrant in interference, therefore, the judgment supplied by counsel for the petitioner is of no help to him. In the facts of the present case, the order impugned passed by the trial Court is hereby upheld dismissing the petition.
The lower appellate Court is directed to decide the appeal as early as possible but not later than three months.
(J.K. MAHESHWARI) JUDGE Raju