The court restored a dismissed appeal for non-prosecution, emphasizing the necessity to hear the case on its merits despite prior delays.

ORDER :

1. Leave granted.

2. This appeal arises from the order passed by the High Court of Madhya Pradesh, Bench at Indore dated 11.7.2018 in Miscellaneous application no.2259/2015 by which the High Court rejected the miscellaneous application filed by the appellants herein (original defendants) and thereby declined to condone the delay in filing application for restoration of the appeal that came to be dismissed for non-prosecution.

3. We take notice of the order passed by this Court dated 14.02.2022. The order reads thus:-

“1. We notice that the delay which started with application for restoration of the first appeal and culminating in the filing of the special leave petition is nearly 2000 days in the aggregate.

2. The petitioners rely upon a judgment of this Court and pointed out the legal issues have been answered in favour of the petitioners. We are inclined to issue notice.

3. Issue notice on the application for condonation of delay as well as on special leave petition.

4. The petitioners will deposit a sum of Rs.2,00,000/- (Two Lakh) to the Registry of this Court within a period of four weeks from today.

5. We make it clear that irrespective of the result of the case this Court intends to allow the respondent to withdraw the said amount. The Registry will immediately on deposit put the amount in a Short Term interest bearing Fixed Deposit Receipt (FDR) and kept it renewed from time to time.

6. In case the amount of Rs.2,00,000/-(Two Lakh) is not deposited, the special leave petition will stand dismissed without reference to the Court.”

4. We are informed that the amount towards costs as directed by this Court has been deposited with the Registry of this Court. The same shall be disbursed alongwith accrued interest now in favour of Supreme Court Legal Services Authority.

5. We have heard Mr. Saurabh Mishra, the learned senior counsel appearing for the appellants and Mr.Vishwajit Singh, the learned senior counsel appearing for the respondent.

6. It appears from the materials on record that the respondent herein instituted a civil suit seeking a declaration that he is the owner of the suit property which comprises of a temple and 15 hectares of open land and the State has no right, title or interest over the suit property.

7. The suit came to be allowed. The declaration as prayed for by the plaintiff was granted.

8. The State preferred first appeal before the District Judge, Neemuch. As usual, the State remained negligent in pursuing their own appeal and allowed it to get dismissed for non-prosecution.

9. In such circumstances, they preferred an application before the very same court to restore the first appeal that came to be dismissed for default. However, unfortunately, even in filing restoration application there was delay. Therefore, the District Judge declined to condone the delay.

10. As the District Judge declined to condone the delay for the purpose of restoring the first appeal the appellants went to the High Court by filing a miscellaneous appeal under Order 43 Rule 1 of the CPC. The High Court also declined to interfere and dismissed the miscellaneous appeal.

11. In such circumstances, referred to above, the appellants are here before this Court with the present appeal.

12. In the facts and circumstances of the case and without saying anything further on merits, we set aside the order passed by the High Court and Order that the first appeal that came to be dismissed for non-prosecution before the Court of the District Judge shall stand restored to its original file. The appeal shall be heard on its own merits.

13. The concerned District Court shall hear the Regular Civil Appeal No.5A/2004 within a period of three months from today and report compliance of our directions to the Registry of the Supreme Court.

14. Notify this matter once again before this Court so as to ascertain what has been happened in the appeal before the District Court.

15. The appeal stands disposed of accordingly.

16. Pending application(s), if any, stand dis