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2016 DIGILAW 106 (MP)

Nathmal Jain v. Pradeep Kumar

2016-02-10

ROHIT ARYA

body2016
ORDER 1. This appeal at the instance of defendant under section 100 CPC is directed against the judgment and decree dated 13.11.2014 and 5.12.2014 passed in Civil Appeal No.10A/2014 by II Additional District Judge, Sironj District Vidisha arising out of the judgment and decree dated 31.10.2013 passed in Civil Suit No.19-A/2012 by Civil Judge, Class-I Sironj, District Vidisha by which the appeal has been dismissed on the ground of limitation. At the same time, the cross-objection filed by the plaintiffs'/respondents' has been allowed. 2. Following substantial questions of law as proposed by counsel for the appellants are addressed : “(1) Whether in the facts and circumstances of the case, the first appellate Court was justified having dismissed the appeal on the ground of limitation as barred by 41 days’ ? ” (2) Whether the first appellate Court has committed serious error of law having allowed the cross-objection filed by the plaintiffs'/respondents' under Order XLI rule 22 CPC after dismissal of the appeal on the ground of limitation in view of judgment rendered by this Court in 1986 JLJ 686 Balwant Singh and another v. State of M.P. and another. 3. Facts necessary for disposal of this appeal are to the effect: Suit for eviction on the grounds available under sections 12(1)(a), (c), (d) and (f) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as the 'Act of 1961) was filed by the plaintiffs'/respondents'. Trial Court dismissed the suit as against the grounds for eviction under sections 12(1)(a), (d) and (f) and decreed the suit under section 12(1)(c) of the Act of 1961. Being aggrieved thereby, the defendant/appellant filed first appeal. The appeal was barred by 41 days'. The plaintiffs'/respondents' have filed cross-objection under Order XLI rule 22 CPC seeking decree of eviction on the grounds of section 12(1)(a), (d) and (f) of the Act of 1961. The first appellate Court has dismissed the appeal on the ground of delay having held that the explanation offered for delay of 41 days' was found to be not satisfactorily explained. However, at the same time, the appellate Court allowed the cross-objection and decreed the suit of the plaintiffs'/respondents' under section 12(1)(a), (f) and (d) of the Act of 1961 as well without notice to the defendant/appellant. 4. However, at the same time, the appellate Court allowed the cross-objection and decreed the suit of the plaintiffs'/respondents' under section 12(1)(a), (f) and (d) of the Act of 1961 as well without notice to the defendant/appellant. 4. Learned counsel for the appellant criticizing the aforesaid judgment and decree submits that the first appellate Court has committed grave illegality on two counts; (i) the delay caused in filing the appeal was only 41 days' but the same has been treated as 71 days' without excluding the period for obtaining certified copy of impugned judgment and decree which is well evident from the judgment impugned therein. Therefore, after excluding the period for obtaining the certified copy, the actual period of delay is only 41 days' which by no stretch of imagination can be said to be inordinate delay; (ii) the explanation offered was indisposition of the appellant and in support thereof, the appellant had filed medical certificates but the same were not at all considered in right perspective. 5. Learned counsel for the appellant contends that the first appellate Court has adopted hyper technical approach while dealing with the application filed under section 5 of the Limitation Act for condonation of delay in filing the appeal which is only 41 days'. It is submitted that no reason, much less, plausible reason has been assigned for dismissing the appeal on the ground of delay in filing the appeal. The observations made by the Court below that the appellant has adopted tactics to explain the delay by producing the medical certificates is wholly unwarranted as the medical certificates were issued by responsible doctor under whom the appellant has taken treatment and there was no evidence contrary thereto to dislodge the aforesaid facts. Hence, the first appellate Court did not consider the explanation so offered and surreptitiously dismissed the appeal. 6. Having heard learned counsel for the appellant and the impugned jdugment, in the opinion of this Court, the first appellate Court was not justified having dismissed the appeal on the ground of limitation. Law is well settled that the Courts while dealing with the applications under section 5 of the Limitation Act have to bear in mind the concept of equity, justice and good conscience to ensure consideration for doing substantive justice between the parties. Law is well settled that the Courts while dealing with the applications under section 5 of the Limitation Act have to bear in mind the concept of equity, justice and good conscience to ensure consideration for doing substantive justice between the parties. The delay of 41 days' was not so fatal to decline hearing the first appeal on merits preferred against the judgment and decree passed by the trial Court. Hence, the impugned judgment and decree cannot be sustained. Accordingly, the same is set aside. 7. As regards dealing with the cross-objection, learned counsel for the appellant contends that in terms of Order XLI rule 22 CPC, once the appeal was dismissed as barred by time, the first appellate Court ought not to have decide the cross-objection. Moreover, the first appellate Court could have issued notice on the cross-objection to the defendant/appellant as well explicit from the provisions of Order XLI rule 22 CPC. That has not been done. Learned counsel has placed reliance on the judgment passed by a coordinate Bench of this Court reported in Balwant Singh and another (supra), to bolster his submission wherein it has been observed as under : “......when the appellate Court, acting under section 3 of the Limitation Act, dismisses an appeal as time barred and refuses to hear it on merits, there would be no occasion for the respondent to support the impugned decree. It is only when the respondent supports the decree, according to the express mandate of sub-rule (1) that he can press his cross-objection to that part of the decree or to any finding rendered in the impugned judgment.” 8. In the opinion of this Court, the first appellate Court has committed grave illegality while allowing the cross-objection after dismissing the appeal filed by the defendant/appellant on the ground of limitation. The impugned judgment and decree passed by the first appellate Court is set aside, accordingly. 9. Consequently, the entire matter is remanded back to the first appellate Court to decide the appeal filed by the defendant/appellant and cross-objection filed by the plaintiffs'/respondents, on merits afresh. 10. Since the suit is of the year 2012 and the matter relates to landlord-tenant dispute, the first appellate Court shall proceed to decide the appeal expeditiously. 9. Consequently, the entire matter is remanded back to the first appellate Court to decide the appeal filed by the defendant/appellant and cross-objection filed by the plaintiffs'/respondents, on merits afresh. 10. Since the suit is of the year 2012 and the matter relates to landlord-tenant dispute, the first appellate Court shall proceed to decide the appeal expeditiously. It is directed that the parties shall appear before the first appellate Court on or before 1.3.2016 and extend full cooperation, and shall not indulge in the practice of seeking unwarranted adjournments. 11. Accordingly, the questions of law are answered in the affirmative and in favour of defendant/appellant. 12. Office is directed to send back the original record to the first appellate Court, forthwith.