IMPORTANT POINT
The importance of exercising discretion judiciously in condoning delay, as established in the judgment of the Hon’ble Supreme Court in the matter of Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi and others, AIR 2022 SC 332.

ORDER :

By way of this application, the applicants are seeking restoration of Second Appeal No.285/2003 which was dismissed for want of prosecution vide order dated 14.2.2017 (Annexure A/1). This restoration application has been filed with a delay of 1094 days, hence an application (IA No.01/2022) for condoning the said delay has also been filed.

2. Learned counsel for the applicants submits that from the records of the said second appeal it appears that appellant Kanchan Bai died on 15.5.2013 and thereafter on 29.7.2013 an application for bringing the legal heirs of the deceased appellant was filed within time but as per direction of this Court, on 13.1.2017 suitable application under Order 22 Rule 3 of CPC was filed. The matter was listed for hearing on the said application on 14.2.2017, however, there being no representation on behalf of the appellant, the second appeal was dismissed for want of prosecution.

He submits that the suit of the respondent/plaintiff was dismissed by the trial Court vide judgment and decree dated 11.7.2000, however, his appeal was allowed vide judgment and decree dated 10.4.2003, therefore, the mother of the applicants herein namely Kanchan Bai filed the instant second appeal in the year 2003 and vide order dated 20.5.2003, considering the facts and circumstances of the case and judgment of the appellate Court, this Court directed for maintaining status quo till disposal of the appeal and pursuant thereto, the appellant peacefully resided on the land in question. However, after dismissal of the appeal for want of prosecution in the year 2017, due to lack of knowledge of dismissal of the appeal as the applicants who belonged to poor labour family failed to pursue the matter properly, they could not take further steps for restoration of the appeal. After receiving execution notice dated 10.2.2022 (Annexure A/3), for the first time they came to know about dismissal of their appeal. He submits that the original defendant Kanchan Bai, mother of the applicants, was diligently pursuing the matter and after her death, her legal heirs i.e. the applicants herein moved an application for contesting the case on her behalf. Since they were facing medical problems and starvation and daughter of Kanchan Bai also suffered shock due to death of her husband, they were not in contact with their counsel. He further submits that due to oversight, they could not see listing of the matter on 14.2.2017 and therefore, in absence of counsel for the appellant, the appeal stood dismissed for want of prosecution. However, the applicants have a good prima facie case on merits, therefore, to advance the cause of justice, delay occurred in filing the restoration application may be condoned and the second appeal be restored to its original number for being decided on merits.

Reliance has been placed on the order dated 12th May, 2023 passed by the High Court of Madhya Pradesh at Gwalior in Misc. Civil Case No.175 of 2023 in the matter of Murarilal and others Vs. State of MP and another.

3. On the other hand, learned counsel for the non-applicant vehemently opposes the prayer of the applicants and submits that from bare perusal of the application seeking condonation of delay it would be apparent that no sufficient and reasonable explanation is given by the applicants for condoning the inordinate delay of 1094 days in filing the application for restoration of the second appeal whereas they were required to explain day to day delay for filing the MCC. From the contents of the said application, it is evident that the applicants were well aware of pendency of the second appeal and therefore, after death of original defendant i.e. mother of the applicants, they moved an application for bringing LRs on record. Though the applicants have taken ground of medical problems but no such document has been filed by them. The applicants have sufficient means of livelihood, so the ground of starvation is also incorrect. Because of pendency of the a