Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 999 (MP)

Prakash v. Uma Chaturvedi

2015-09-21

U.C.MAHESHWARI

body2015
ORDER 1. Heard on M(C)P No.210/2003 and I.A. No.4649/2014, appellant's application for condoning the delay in filing this appeal, as the same is filed, barred by 416 days. 2. By filing the reply on behalf of the respondent No.6, the averments of the same have been disputed, stating that whatsoever cause has been stated in it, the same could not be treated to be sufficient cause for condoning the alleged delay as per requirement of section 5 of Limitation Act and prayed for dismissal of those M(C)P and I.A. 3. Having heard the counsel, keeping in view the arguments advanced, I have carefully gone through the aforesaid M(C)P and I.A. In earlier M(C)P No.210/2003, it is stated that the impugned ex parte award was passed without serving any notice or copy of the claim petition on the appellant, the registered owner of the offending tractor, accordingly, the same was passed without extending an opportunity of hearing to the appellant. It is further stated that soon after receiving the information of passing such ex parte award under bona fide advice the appellant has approached the tribunal with an application under Order 9 rule 13 CPC for setting aside the above-mentioned ex parte award dated 14.9.2001. In pendency of such proceeding under Order 9 rule 13 CPC before the tribunal again on receiving the bona fide advice from the counsel to file Miscellaneous Appeal against such award, by moving an application for withdrawal of such proceeding of Order 9 rule 13 CPC, vide order 1.2.2003 withdraw such proceeding and thereafter, file this appeal along-with first application i.e. M(C)P No.210/2003 under section 5 of Limitation Act for condoning the alleged delay in filing the appeal. Subsequently, the appellant has filed second application (I.A. No.4649/2014) for giving elaborate explanations regarding the facts stated in the earlier application for condoning the alleged delay. In second application, it is also stated that the appellant being an illiterate and poor villager, under bona fide advice of the counsel, initially had filed the proceeding under Order 9 rule 13 CPC and latter, on further advice after withdrawing such proceeding, filed this appeal. 4. In reply of the respondent No.6, the averments stated in such applications for condoning the delay have been denied. 4. In reply of the respondent No.6, the averments stated in such applications for condoning the delay have been denied. In addition to it, it is stated that after withdrawal of the application of Order 9 rule 13 of CPC, the appellant did not have any right to file the appeal. Inter alia, it is stated that whatsoever cause has been stated in the applications, the same could not be treated to be sufficient cause as per requirement of section 5 of Limitation Act to condone the alleged long delay. 5. Appellant's counsel in his argument, by referring the order dated 1.2.2003 passed by the Tribunal in the proceeding of Order 9 rule 13 of CPC being Case No.43/1998 (Claim), said that according to such order, the appellant was permitted to withdraw the proceeding of Order 9 rule 13 of CPC by extending the liberty to file the appeal and under such liberty, this appeal has been filed and in such circumstance, there are sufficient cause to condone the alleged delay and prayed to allow the applications. He also placed his reliance on a reported case of the apex Court. 6. The aforesaid prayer of the appellant's counsel is opposed by the counsel of respondent No.6, saying that after withdrawal of the proceedings of Order 9 rule 13 of CPC, the ground taken in such proceedings, could not be raised by the appellant again in the present appeal and in addition, he said that date of passing the ex parte award was very-well in the knowledge of the appellant from the date of filing the aforesaid proceeding of Order 9 rule 13 CPC, thus, the limitation to file the appeal was started from such date. Such limitation could not be counted from 1.2.2003, the date of withdrawing the proceeding of Order 9 rule 13 CPC, because such proceeding of Order 9 rule 13 CPC was also filed before the competent Court and not before the wrong forum, therefore, the appellant is not entitled to get the benefit of section 14 of the Limitation Act. It is undisputed position under the law that against the ex parte order, appeal and proceedings for setting aside the ex parte order before the same Court are concurrently available simultaneously. It is undisputed position under the law that against the ex parte order, appeal and proceedings for setting aside the ex parte order before the same Court are concurrently available simultaneously. So, in such premises, having knowledge of the date of the order from the date of filing the proceeding of Order 9 rule 13 CPC if the appeal was not filed within limitation from such date of knowledge, then the cause stated in the applications could not be treated to sufficient cause for the period between the date of filing the proceedings of Order 9 rule 13 CPC and the prayer for dismissal of M(C)P and I.A. is made. 7. Keeping in view the aforesaid arguments, I have carefully gone through the available record. 8. It is undisputed fact that the impugned award was passed ex parte against the appellant on 14.9.2001, thereafter, the proceeding of Order 9 rule 13 CPC was filed on behalf of the appellant before the Tribunal on 15.10.2001. In such circumstances, it shall be presumed that the appellant had got information of the impugned ex parte award on such date 15.10.2001, thus, the period of limitation, prescribed under the law, was started from such date to file the appeal and not from the date of withdrawing the proceeding of Order 9 rule 13 CPC, i.e. 1.2.2003. 9. Under the law, it is settled proposition that the remedy of the proceeding of Order 9 rule 13 CPC for setting aside the ex parte decree or order and of regular appeal against such order is available concurrently, the same is not based on each other. In such premises, I have not found any circumstance in this case to draw an inference that under the bona fide advice, the proceeding of Order 9 rule 13 CPC was prosecuted by the appellant before the wrong forum and, therefore, the period spent in prosecuting such proceeding of Order 9 rule 13 CPC could not be taken into consideration to exclude the same to condone the alleged delay in filing this appeal. So, in such premises, I am of the considered view that the cause stated by the appellant to condone the alleged delay could not be held to be sufficient cause as per requirement of section 5 of Limitation Act. 10. So, in such premises, I am of the considered view that the cause stated by the appellant to condone the alleged delay could not be held to be sufficient cause as per requirement of section 5 of Limitation Act. 10. True, it is that as per settled proposition while considering the application under section 5 of Limitation Act, the Court is bound to adopt a lenient view keeping in view the stake of the litigation but it does not mean that by adopting a lenient view, the valuable right, which has already been accrued in favour of other party on expiry of period of limitation prescribed, could be interfered by the Court in the lack of proving the sufficient cause. 11. In the matter of Ramlal and others v. Rewa Coalfields Limited, reported in AIR 1962 SC 361 , the Supreme Court has held that after expiry the period of limitation to file any specific proceeding before the appropriate forum a valuable right which has been accrued in favour of other party could not be distributed or struck down unless the sufficient cause is made out. The apex Court has held as under :- “In construing section 5, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed.” 12. In view of aforesaid, I have not found any sufficient cause in the case at hand for condoning the alleged delay in filing this appeal. 13. Although the appellant's counsel has placed his reliance on the decision of the apex Court in the matter of S. Ganesharaju v. Narasamma, reported in (2013) 11 SCC 341 , holding that while dealing with the application of section 5 of Limitation Act, a lenient view should be adopted to decide the matter on merits rather than dismiss the appeal on technical question of limitation. So far as the principle laid down in the cited-case is concerned, this Court did not have any dispute but in the available facts and circumstances of the case at hand, the same being distinguishable on facts, is not helping to the appellant. 14. So far as the principle laid down in the cited-case is concerned, this Court did not have any dispute but in the available facts and circumstances of the case at hand, the same being distinguishable on facts, is not helping to the appellant. 14. In view of the aforesaid discussion, it is held that the appellant has failed to prove any sufficient cause to condone the alleged delay in filing this appeal. Consequently, the aforesaid M(C)P and I.A. are hereby dismissed. Pursuant to it, the appeal is also dismissed, as barred by time. .....................