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2011 DIGILAW 1329 (MP)

Salikram v. Keshav

2011-11-23

K.K.TRIVEDI

body2011
JUDGMENT 1. This appeal under section 100 of the Code of Civil Procedure has been filed against the order dated 1.3.2008 passed in First Appeal No. 1/2007. The said appeal has been dismissed by the impugned order holding that the same was barred by limitation. The appellants in fact filed the first appeal against the judgment and decree dated 14.8.2006 passed in Civil Suit No. 380-A/2004 passed by the Civil Judge, Class-II, Saunsar, District Chhindwara, before the II Additional District Judge, Chhindwara. Since the appeal was barred by limitation, an application under section 5 of the Limitation Act was also filed for condoning the delay. It was contended in the application that the appellants were rustic village people and were having no knowledge of the fate of the civil suit in which they were the defendants. It was contended in the application that the appellants could know about the passing of the judgment and decree in the civil suit only when the proceedings were initiated against them in the Revenue Court. Thereafter, on verification of the facts when they come to know that civil suit has already been decreed against them, they obtained certified copy and filed the first appeal expeditiously. 2. The lower Appellate Court has not accepted such a plea of the appellants only on the ground that they were being represented by the counsel and if they have not verified the fact about the suit from their counsel, it could not be treated to be sufficient explanation of delay. If was further held that there was nothing produced to indicate that the appellants could know about the passing of impugned judgment and decree in the civil suit only when the proceedings under section 110 of the M.P. Land Revenue Code were initiated against them. The lower Appellate Court has recorded that fact that the information with respect to passing of the impugned judgment and decree came to the notice of the appellants on 8.11.2008 on which date they appeared before the Tahsildar where proceedings were initiated against them by the respondents. Even after this, immediately no action was taken for obtaining certified copy, which was ready on 8.12.2006 but was received only on 22.12.2006. Even after this, immediately no action was taken for obtaining certified copy, which was ready on 8.12.2006 but was received only on 22.12.2006. It is also recorded by the lower Appellate Court that the appeal was filed on 4.1.2007 and, therefore, the Court below was of the opinion that there was no sufficient bona fide reason mentioned for the delay caused in filing the appeal. 3. It is contended by the learned counsel for the appellants that since the appellants were residing in different villages, they were not informed by their counsel about obtaining of certified copy of the impugned judgment and decree and this fact has been categorically mentioned in the application so filed before the Court below. It is contended that the lower Appellate Court should have taken a lenient view and instead of dismissing the appeal as barred by limitation, the first appeal of the appellants, should have been heard and decided on merits. Learned counsel for the appellants has relied on the case of State of Bihar v. Kameshwar Prasad Singh, (2009) 9 SCC 94 and has contended that as per the law laid down by the apex Court, a lenient view should have been taken by the learned lower Appellate Court. 4. Per contra it is contended by the learned counsel for the respondents No.1 and 2 that the appellants were grossly negligent in prosecution their claim. They have not taken any proper care to attend the case when the trial was going on. It is further contended by the learned Counsel for the respondents No.1 and 2 that the learned lower Appellate Court has not committed any error in law in rejecting the application of the appellants under section 5 of the Limitation Act and consequently dismissing the first appeal as barred by limitation. 5. Learned counsel for the respondent No. 3/State has also supported the order passed by the Court below. 6. In the considered opinion of this Court, looking to the circumstances as are available in a tribal district, a lenient view was possible. Even otherwise the first appeals are to be filed as of right provided under the Code of Civil Procedure and merely on technical ground of delay, the appeal should not have been dismissed. 6. In the considered opinion of this Court, looking to the circumstances as are available in a tribal district, a lenient view was possible. Even otherwise the first appeals are to be filed as of right provided under the Code of Civil Procedure and merely on technical ground of delay, the appeal should not have been dismissed. The law has been well explained by the apex Court in the case of Kameshwar Prasad Singh (supra) where it has been said that if some cause is shown for the delay, the Court should accept the same and merely because of delay or on technicalities the appeal should not be dismissed. 7. In view of the aforesaid, this appeal is allowed. The impugned order is set aside. The case is remitted back to the lower Appellate Court with a direction to treat the first appeal of the appellants as within limitation and to hear and decide the same, preferably within a period of 6 months. Parties fire since represented before this Court, they are directed to remain present before the lower Appellate Court on 12th December, 2011 along with a certified copy of the order passed today. 8. The Registry is directed to send back the records of the Court below immediately to the lower Appellate Court for the purpose of hearing of the first appeal. 9. With the aforesaid, the appeal is allowed and finally disposed of. Ashok Chakraworty for appellants; Pradeep Naveriya for respondents No.1 and 2; Mukesh Tiwari, Panel Lawyer for respondent No. 3/State.