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2015 DIGILAW 1215 (MP)

STATE OF M. P. v. NARENDRA KUMAR TIWARI

2015-12-01

PRAKASH SHRIVASTAVA

body2015
ORDER : Prakash Shrivastava, J. Heard on I.A. No.3892/2008 which is an application under Order 41, Rule 3 (A) read with Section 14 and 5 of the Limitation Act as also I.A. No. 177/2013 which is an application under Section 14 of the Limitation Act for exclusion of time spent in prosecuting the wrong remedy and also for condonation of delay in filing the appeal. 2. There is a delay of 12184 days in filing this appeal. 3. Learned counsel appearing for the appellant submits that since the appellant was prosecuting the wrong remedy of filing the Civil Suit, First Appeal and Second Appeal, hence the time consumed during this process is required to be excluded. He has further submitted that the Second Appeal was dismissed with liberty to file the Miscellaneous Appeal by order dated 10.5.2007 and thereafter the Miscellaneous Appeal was filed on 4.4.2008 and this delay of 325 days has properly been explained, hence the same deserves to be condoned. 4. Learned counsel for the respondents has opposed the applications and has submitted that the appellant is not entitled to the benefit of Section 14 of the Limitation Act. He further submits that the delay which has taken place in filing the present appeal after dismissal of Second Appeal, has not properly been explained. He has also submitted that the suit itself was filed after the expiry of limitation of filing the Miscellaneous Appeal. 5. I have heard the learned counsel for the parties and perused the record. 6. In the insolvency proceedings the appellant had raised an objection that the land in question is Government land and the said objection was rejected vide order dated 26.11.1973. Aggrieved with this order, the appellant had filed the Civil Suit on 7.11.1974. 5. I have heard the learned counsel for the parties and perused the record. 6. In the insolvency proceedings the appellant had raised an objection that the land in question is Government land and the said objection was rejected vide order dated 26.11.1973. Aggrieved with this order, the appellant had filed the Civil Suit on 7.11.1974. The suit was dismissed by the trial Court on 24.9.1979, against which the appellant had filed First Appeal which was also dismissed by order dated 23.12.1992 and thereafter the Second Appeal No. 127/1993 was filed by the appellant, which was admitted by this Court by framing the substantial question of law and ultimately the Second Appeal was dismissed by order dated 10.5.2007 on reaching to the conclusion that the Civil Suit filed by the appellant was not maintainable and holding that the appellant had the remedy of filing the appeal under Section 75 of the Provincial Insolvency Act, 1920 and giving liberty to the appellant to file the appeal under Section 75 before this Court. While deciding the Second Appeal No.127/93 by order dated 10.5.2007, this Court had held as under :- "12. In my considered view, the plaintiff had 2 remedies available to question the action of Receiver when he sold the land in suit to R.3 to 8. One was to file an objection under section 4(1) in insolvency proceedings and the other was to file a civil suit. However having chosen to file an objection before the Insolvency Court under section 4(1) and inviting finding of Insolvency Court on the issue raised in objection, the plaintiff could only pursue the issue so decided by Insolvency Court against the plaintiff in appeal under Section 75 of the Act before the High Court by challenging the order dated 26.11.73 passed by Insolvency Court. In other words, once the plaintiff invoked the jurisdiction of Insolvency Court for adjudication of their grievance raised in their objection and the same having suffered the rejection from the Insolvency Court, it could not be questioned by filing a civil suit. In such situation, as observed supra, the remedy lay only in appeal to get rid of the same under Section 75 of the Act. Indeed this has been the view of 2 High Courts taken in aforesaid 2 old cases and I respectfully followed it. 14. In such situation, as observed supra, the remedy lay only in appeal to get rid of the same under Section 75 of the Act. Indeed this has been the view of 2 High Courts taken in aforesaid 2 old cases and I respectfully followed it. 14. However before parting with the case, I am inclined to observe that dismissal of suit and in consequence this second appeal resulting in upholding of the dismissal of suit would not come in the way of appellant/plaintiff to file regular Misc. Appeal under section 75 of the Provincial Insolvency Act before the High Court against the order dated 26.11.73 passed by Insolvency Court in case No.2/70 and seek its adjudication by applying for condonation of delay in filing appeal on the ground as may be available to them under the Limitation Act. In other words, this liberty and remedy is open to appellant/plaintiff and it is now for the appellant to decide whether to take its recourse or not?" 7. Availing the above liberty, the appellant has filed the present Miscellaneous Appeal under Section 75 of the Provincial Insolvency Act, 1920 on 4.4.2008. 8. The appellant is seeking exclusion of time consumed in prosecuting the remedy of first and second appeal under Section 14 of Limitation Act and condonation of delay under Section 5 of the Act. 9. This Court in the matter of Rajendra Prasad and others v. Ramlal S/o Sudama Prasad, reported in 2013(4) MPLJ 209 has considered the object and requirement of Section 14 of the Limitation Act as under :- "7. The object of section 14 of the Act is to extend the protection against bar of limitation to a person honestly doing his best to get his case tried on merits but failing through Court been unable him of such trial. In order to attract the applicability of section 14 of the Limitation Act, following conditions are required to be satisfied:- (i) Both the prior and subsequent proceedings are civil proceeding prosecuted by the same party; (ii) the prior proceeding had been prosecuted with the due diligence and good faith; (iii) the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (iv) the earlier proceeding and the later proceeding must relate to the same matter in issue; and (v) both the proceedings are in a Court. [See: Raghunath v. Gokul, AIR 1958 SC 827 and Sofar Khan v. Board of Revenue, AIR 1985 SC 39 ]." 10. In the present case all the aforesaid conditions are satisfied, therefore, the provisions of Section 14 of the Limitation Act are attracted. 11. Counsel for the respondents placing reliance upon the judgment of the Supreme court in the matter of Ramji Pandey and others v. Swaran Kali, reported in AIR 2011 SC 489 has submitted that since the appellant was negligent in prosecuting the remedy before the wrong forum, therefore, on account of lack of due diligence the appellant is not entitled to the benefit of section 14 of the Limitation Act but such a submission cannot be accepted because this Court had found that the Second Appeal No.127/93 involve substantial question of law and had admitted it framing the substantial question of law and thereafter the said substantial question of law was decided by order dated 10.5.2007 finding that the appellant was prosecuting the wrong remedy and considering the circumstances of the case, at that stage itself the liberty was granted to the appellant to file Miscellaneous Appeal under Section 75 of the Provincial Insolvency Act. From the facts of the present case it cannot be held that the appellant was negligent or not diligent in prosecuting the proceedings in the earlier round of litigation. 12. In the judgment in the matter of Ramji Pandey (supra) which the respondent is relying upon, it was found that the concerned appellant was not diligent in prosecuting the matter and was negligent inasmuch as he had failed to appear and contest the suit which had proceeded ex parte and had even not appeared before the High Court when the order was passed, but no such circumstances exist in the present case. 13. The Supreme Court in the matter of Badlu and Another v. Shiv Charan and others, reported in (1980) 4 SCC 401 has held that if a litigant is pursuing a bona fide civil proceeding with due diligence and in good faith in any appeal or revision, he is entitled to the exclusion of time taken in such proceeding. 14. 13. The Supreme Court in the matter of Badlu and Another v. Shiv Charan and others, reported in (1980) 4 SCC 401 has held that if a litigant is pursuing a bona fide civil proceeding with due diligence and in good faith in any appeal or revision, he is entitled to the exclusion of time taken in such proceeding. 14. So far as the period after the dismissal of Second Appeal on 10.5.2007 till the filing of the present Miscellaneous Appeal on 4.4.2008 (within a period of about 325 days), it is found that the appellant in the I.A. No.3892/2008 has explained the delay which reveals that though the certified copy of the order of Second Appeal was received on 23.5.2007 and the certified copy of the order passed in Insolvency Case No.2/70 was applied but was not received in spite of the efforts. Thereafter a photocopy of the said order was made available by the Government advocate and communication dated 6.2.2008 was sent through the office of the A.G. The OIC had contacted on 3.4.2008 and the appeal was prepared and filed on 4.4.2008. In these circumstances it is found that the said delay has also properly been explained. 15. The Supreme Court in the matter of J. Kumaradasan and Another v. IRIC Sohan and others, reported in (2009) 12 SCC 175 has held that provisions contained in Section 5 and 14 of the Limitation Act are made for grant of relief where a person has committed some mistake and they should be applied in a broadbased manner and the Court will not apply such beneficent provisions in a pedantic manner. 16. Counsel for the respondent has placed reliance upon the judgment of the Supreme Court in the matter of State of Uttar Pradesh through Executive Engineer and Another v. Amar Nath Yadav, reported in (2014) 2 SCC 422 but that was a case where the delay was not explained, but in the present case delay has properly been explained. 17. In the circumstances which are noted above, I am of the opinion that I.A. No. 177/2013 and I.A. No.3892/2008 deserve to be allowed and are accordingly allowed and the period which was spent by the appellant for prosecuting the wrong remedy, is excluded and the delay in filing the appeal is condoned. 18. List on 1.3.2016.