Madhya Pradesh High Court
Chhogalal vs Smt. Husain Bai on 24 July, 2003
Equivalent citations: 2003(4)MPHT268
Author: A.M. Sapre
Bench: A.M. Sapre
ORDER
1. Having heard learned Counsel tor the parties and having perused record of the case, I am inclined to allow this revision and set aside the impugned order dated 28-3-2003, passed by IVth Additional District Judge, Dewas, in Miscellaneous Civil Appeal No. 31 of 2000, which in turn arises out of Civil Suit No. 47-A of 1998, decided by IIIrd Civil Judge, Class I, Dewas, on 30-6-1999.
2. This is a civil revision preferred by defendant against the judgment/decree passed by learned First Appellate Court, whereby her first appeal filed under Section 96 of CPC against the judgment/decree passed by the Trial Court was dismissed on the ground of limitation. In other words, the appeal preferred by the petitioner/defendant before the First Appellate Court was filed 45 days late and therefore, the appellant moved an application for condoning the delay under Section 5 of Limitation Act. It is this application, which was dismissed by the learned First Appellate Court holding that it docs not disclose any sufficient cause within the meaning of Section 5 of Limitation Act and hence, application made under Section 5 of the Limitation Act is rejected. As a consequence, the appeal was also dismissed as barred by limitation.
3. Since, the dismissal of the first appeal was on the point of limitation only, the learned First Appellate Court did not examine the merits and demerits of the controversy involved in the appeal. Indeed, there was no occasion for the First Appellate Court to have gone into the merits or demerits of the appeal, once the same was dismissed on the ground of limitation. It is against this order, the petitioner (defendant) has come up in this revision.
4. In my opinion, the First Appellate Court should have been liberal in considering Section 5 of Limitation Act application made by the petitioner (i.e., appellant before the First Appellate Court) and should have condoned the delay. The delay of 45 days can not be said to be unreasonable, or inexcusable, or inordinate even so as to deny the right of hearing on merits. It can not be lost sight of the fact that condoning the delay advances a cause of justice whereas not condoning the delay takes away the valuable right of the appellant to prosecute a first appeal under Section 96 of the CPC. A right of first appeal conferred under Section 96 of CPC is one of the most valuable rights given to a litigant. It should not be lightly taken away from his hands unless the delay in filing the appeal is found to be grossly inadequate and/or unexplained. The recent view of the Supreme Court in the cases arising out of Section 5 of Limitation Act indicates that the approach of the Courts in condoning the delay should be liberal and the litigant can not be expected to explain each and every day delay as was the view earlier.
4-A. As observed supra, in my opinion, the delay of 45 days was properly explained by the petitioner/defendant before the First Appellate Court in her application made under Section 5 of the Limitation Act. It was also duly supported by an affidavit of one of the appellant. The learned First Appellate Judge went into the issue of sufficiency of cause by appreciating the conduct of the appellant with so minute detail which was neither necessary, nor called for. It was not an appreciation of evidence which was really needed while deciding the suits on merits. In totality, the Court should have seen the cause and then should have drawn its conclusion whether it was plausible or not, rather than to find out, or examine the technicalities, or criticize the conduct of the appellant. The approach of the learned First Appellate Court, in my humble opinion, was very technical.
5. Accordingly and in view of aforesaid discussion, I am unable to subscribe to the view taken by the learned First Appellate Court when it proceeded to dismiss the application made by the petitioner/defendant under Section 5 of the Limitation Act. In my considered opinion, the delay of 45 days was properly and plausibly explained by the appellant and the same should have been accepted to be a sufficient one, within the meaning of Section 5 of the Limitation Act.
6. I, therefore, allow the application made by the petitioner/ defendant under Section 5 of the Limitation Act in the appeal before the First Appellate Court and condone the delay. As a consequence, the appeal filed by the appellant is held to be within limitation.
7. Revision, thus, succeeds and is allowed. Impugned judgment/ order is hereby set aside. As a consequence, the First Appellate Judge is directed to hear the first appeal preferred by the petitioner/defendant on merits. Let the appeal be disposed of as expeditiously as possible and preferably within six months. The Registry is directed to send back the files of the Courts below immediately. Parties to appear before the First Appellate Court on 6th day of August, 2003 for participating in appeal on merits.