Madhya Pradesh High Court
Rambabu vs The State Of Madhya Pradesh on 20 November, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
THE HIGH COURT OF MADHYA PRADESH
MCC-2768-2019
(RAMBABU Vs THE STATE OF MADHYA PRADESH)
Gwalior, Dated :20/11/2019
Shri S.S. Tomar, learned counsel for the petitioner.
Shri Purushottam Pandey, Government Advocate for the
respondent/State.
Present MCC has been filed by the petitioner for restoration of the Contempt Petition No.1918/2018 which was dismissed for non compliance of peremptory order passed by the Coordinate Bench of this Court vide order dated 12.09.2018.
It is submitted by the counsel for the petitioner that due to inadvertence, he could not cure the default within time as result of which Contempt Petition was dismiss for non compliance of peremptory. It is further alleged that he is ready to cure the default as pointed out by the Registry within three working days. It is further alleged that although there is delay of filing the restoration application for one year he has filed I.A. No.4634/2019 for condonation of delay for filing the restoration application. He has relied upon the judgment passed by Supreme Court in the case of M.K.Prasad Vs. P.Armugam, reported in, (2001) 6 SCC 176 and has argued that it is a settled law that for fault of counsel, a party should not be made to suffer.
THE HIGH COURT OF MADHYA PRADESH MCC-2768-2019 (RAMBABU Vs THE STATE OF MADHYA PRADESH) Heard learned counsel for the petitioner and perused the record.
Heard on I.A. No.4634/2019 an application filed u/S.5 of the Limitation Act.
For the reasons mentioned in the application, the same is allowed.
Delay of 348 days in filing MCC is hereby condoned. It is settled law that the Hon'ble Supreme Court in the case of Rafiq & Ors. Vs.Munshilal and Anr. reported as AIR 1981 SC 1400 wherein, the Hon'ble Court has held as under :
"Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid him fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel".
The Hon'ble Supreme Court in the case of M.K.Prasad Vs. P.Armugam, reported in, (2001) 6 SCC 176 which reads as under;
"10. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his THE HIGH COURT OF MADHYA PRADESH MCC-2768-2019 (RAMBABU Vs THE STATE OF MADHYA PRADESH) application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case, we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exists for setting aside the ex parte decree as well."
Considering the aforesaid judgment passed by Hon'ble Supreme Court wherein, it is categorically held that for the fault of counsel, a party should not be made to suffer. Therefore, this Court deems it fit to allow the MCC.
Therefore, the Misc. Civil Case is allowed subject to payment of cost of Rs.2000/- to be deposited in the Legal Aid Services within seven working days.
Contempt Petition No.1918/2018 is restored to it's original number for hearing on merits.
THE HIGH COURT OF MADHYA PRADESH MCC-2768-2019 (RAMBABU Vs THE STATE OF MADHYA PRADESH) MCC stands allowed as indicated herein above. A copy of this order be kept in the record of Contempt Petition No.1918/2018.
C.C. as per rules.
(Vishal Mishra) Judge vpn VIPIN KUMAR AGRAHARI 2019.11.22 10:20:46 +05'30'