Madhya Pradesh High Court
Sanjiv Kumar vs Pyarelal on 27 January, 2017
C.R. No. 312/2016 -:1:-
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
SINGLE BENCH: JUSTICE VIJAY KUMAR SHUKLA
Civil Revision No. 312/2016
Sanjiv Kumar & Ors.
VERSUS
Pyarelal & another
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Shri Imtiyaz Hussain, learned counsel for the applicants.
Shri Brindawan Tiwari, learned counsel for the
respondents.
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ORDER
(27.01.2017) This is a revision petition under Section 115 of the Code of Civil Procedure, 1908 challenging the legality and validity of the order dated 11.08.2016 passed in Misc. Civil Case No. 2/2016 passed by the Addl. Judge to the Court of Civil Judge, Class-I Sihora, District Jabalpur whereby the Court below has allowed the application filed by the respondent/plaintiff under Order 9 Rule 9 of CPC and also the application for condonation of delay filed under Section 5 of the Limitation Act.
C.R. No. 312/2016 -:2:-2. Learned Counsel for the applicants submits that the respondents/plaintiff filed a Civil Suit No. 67-A/2012 against the respondent which was dismissed in absence of the plaintiff on 29.01.2014. He further submits that the respondent/plaintiff filed an application under Order 9 Rule 9 of CPC alongwith the application under Section 5 of the Limitation Act for restoration of the suit on 30 t h October, 2014. After recording the evidence, the trial Court has passed the impugned order and allowed the applications. Learned counsel for the applicants submits that the respondents could not establish any sufficient cause for restoration of the Civil Suit. It was stated in the application for restoration that because of his mental imbalance, he could not participate in the proceedings of the Court. Learned counsel for the applicant submits that the respondent has not filed any documents regarding his treatment and also did not make any specific pleadings regarding the dates of ailment treatment and therefore, the Courts below ought to have not restored the suit and the application for condonation of delay would have been dismissed. It is stated that in absence of sufficient cause, the applications could not have been allowed, hence impugned order is illegal.
3. From perusal of the application (Annexure P-2) filed by the respondent, it is evident that he has stated that after the death of his wife he was left alone by his sons, his mental condition became imbalance and he C.R. No. 312/2016 -:3:- became semi-insane. In para 4 of the application he has stated that after recovery from the same, he contacted with his counsel and thereafter, he came to know that the suit was dismissed in his absence.
4. To appreciate rival submissions, it is apposite to refer the provisions of Order 9 Rule 9 of CPC which is reproduce as under:
Rule 9. Decree against plaintiff by
default bars fresh suit .- (1) Where a
suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
5. The provision of Order 9 Rule 9 requires that the plaintiff has to specify the Court that there was sufficient cause for non-appearance when the suit was C.R. No. 312/2016 -:4:- called on for hearing. On being satisfied, the court shall make an order set-aside the dismissal of the suit. The Court below has taken into consideration the pleadings and oral evidence adduced by the parties.
6. In this case, the plaintiffs witnesses namely Munna Lal (AW2) and Ramswarrom (AW3) has clearly stated that the mental condition of the petitioner was disturbed on the relevant period. Prior to the said period also, he got mentally disturbed. The witnesses have supported the averments made in the application, the defendants or their witnesses did not make any contrary statements that the petitioner was not mentally disturbed during the said period. No contrary evidence was also brought by the defendants and therefore, the trial Court has rightly plead the reasons stated by the plaintiffs/respondents and his witnesses and allowed the application under Order 9 Rule 9 CPC. In Number of judgments this Court has held that the sufficient cause as mentioned under the provisions of law has to be considered liberally, this view is supported by the view of this Court as held in the case of Oriental Aroma Chemical Industries Ltd. Vs Gujrat Industrial Development Corporation and another 2010(3) MPLJ 507 this Court has held that the expression of "sufficient cause" is elastic no hard and fast rule can be laid down in dealing with the application for condonation of delay. This view is fortified by the judgment passed by the Apex Court in the case of M.K. Prasad Vs P. Arumogam AIR 2001 C.R. No. 312/2016 -:5:- SC 2497 . Regarding the condonation of delay, this court has held in case of Chhogalal Vs Smt. Hussain bai 2003 MPHT 4 268 .
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 C.R. No. 312/2016 -:6:- not be expected to explain each and every day delay as was the view earlier.
7. In view of the aforesaid discussions of case and law, I do not find any illegality in the order impugned passed by the Court below in allowing application under Order 9 Rule 9 CPC and condoning the delay.
8. The Revision petition is dismissed accordingly.
(Vijay Kumar Shukla) Judge Amitabh