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IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
VIVEK RUSIA, J.
Ramesh and Ors. - Appellants
Versus
Laxmi Bai - Respondent
M.P. No. 3930 of 2019
Decided On : 01-03-2021
Limitation Act - Civil Suit - Section 5 of the Limitation Act - 2000 (7) SCC 372, 2007 14 SCC 772 - The court held that the application under Section 5 of the Limitation Act must be decided before proceeding with the appeal on merit. The court referred to the provisions of Order 41 Rule 3-A of the Civil Procedure Code and emphasized that the appeal cannot be decided unless the application for condonation of delay is decided in favor of the appellant.
Fact of the Case:
The plaintiffs filed a Civil Suit for declaration of title and partition of joint family property. The defendants filed a first appeal along with an application for condonation of delay under Section 5 of the Limitation Act. The appeal and the application were pending before the II Additional District Judge, Ratlam.
Finding of the Court:
The court found that the application under Section 5 of the Limitation Act must be decided before proceeding with the appeal on merit. The court set aside the order of the learned Additional District Judge and directed the Appellate Court to decide the application filed under Section 5 of the Limitation Act first before proceeding further in the pending First Appeal.
Issues: The main issue was whether the application under Section 5 of the Limitation Act should be decided before proceeding with the appeal on merit.
Ratio Decidendi: The court relied on the provisions of Order 41 Rule 3-A of the Civil Procedure Code and the judgments in 2000 (7) SCC 372 and 2007 14 SCC 772 to emphasize that the appeal cannot be decided unless the application for condonation of delay is decided in favor of the appellant.
Final Decision: The petition was allowed, and the impugned order passed by the learned Additional District Judge was set aside with a direction to the Appellate Court to decide the application filed under Section 5 of the Limitation Act first before proceeding further in the pending First Appeal.
JUDGMENT :
Vivek Rusia, J.
1. The petitioners (hereinafter referred to as plaintiffs) have filed the present petition being aggrieved by the order dated 27.04.2019 passed by II Additional District Judge, Jaora, District Ratlam.
2. Facts of the case in short as under:
3. Being aggrieved by the aforesaid judgment and decree the defendants filed a first appeal in the year 2013 alongwith an application for condonation of delay under Section 5 of the Limitation Act. The presents plaintiffs filed the reply to the aforesaid application on 29.05.2013.
4. The appeal is pending since 2013 in the court of II Additional District Judge, Ratlam. On 24.02.2019, it came to the notice of the learned Additional District Judge that an application under Section 5 of the Limitation Act has not been decided so far. Both the parties have agreed to first argue on the aforesaid application. The arguments were heard and kept for order on 27.04.2019. Vide order dated 27.04.2019, the learned II Additional District Judge has decided that the application filed under Section 5 of the Limitation Act would be decided along with the first appeal on merit. Since then the appeal, as well as the application for condonation of the delay, are pending.
5. Now the plaintiffs have filed the present petition challenging the order dated 24.04.2019, on the ground that learned Additional District Judge has committed an error of law while keeping an application under Section 5 of Limitation Act, along with the appeal for consideration while final hearing the First Appeal on merit, which is not permissible in view of the law laid down by the Apex Court as well as this Court in the case of State of Bihar & Ors. v. Arjun Prasad Rajak, 2009 SAR (Civil) 334, Shiv Kumar Vs. Padum, 2001 (1) MPHT 186, Chhitu Vs. Mathuralal and Ors., AIR 1981 M.P. 13.
6. I have perused the documents filed along with the petition.
7. It is correct that the respondents/appellants who filed an appeal did agree on 22.04.2019 for deciding the application under Section 5 of the Limitation Act before deciding the appeal on merit and arguments were advanced, hence no notice is libel to be issued to the respondents in this writ petition.
8. The First Appeal is pending since 2013-14 hence same is liable to be decided expeditiously. After hearing learned counsel for the parties learned the Additional District Judge concluded that the appeal had already registered for final argument therefore, it would be proper to decide the appeal on merit as well as an application under Section 5 of Limitation Act. In the case of State of M.P. Vs. Pradeep Kumar, 2000 (7) SCC 372, the Apex Court has held that the object of enacting Rule 3-A of Order 41 of the Civil Procedure Code seems to be two-fold. The first is, to inform the appellant himself that appeal is time-barred and it would not be entertained unless it is accompanied by an application explaining the delay. The second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with the application for condonation of delay as a condition precedent. In case of S.V. Matha Prasad Vs. Lalchand Meghraj and Others, (2007) 14 SCC 772, the Supreme Court of India has held that by the impugned judgment, the Division Bench of High Court has not only condoned the delay but taken a decision on the merit as well and in the considered opinion second exercise was not justified as the only issue before the Division Bench was the question of limitation, accordingly, the ju
The main legal point established in the judgment is that the application under Section 5 of the Limitation Act must be decided before proceeding with the appeal on merit, as per the provisions of Ord....
The delay in filing an appeal should be condoned in the interest of justice, where there is no gross negligence or deliberate inaction by the appellant. The expression 'sufficient cause' in Section 5....
For a delay to be condoned under Section 5 of the Limitation Act, the appellant must establish sufficient cause, independent of case merits, and allegations of fraud require substantial proof.
A formal application for condonation of delay under the Limitation Act is not mandatory if sufficient cause is shown, allowing courts to exercise discretion in restoring cases.
A party must provide substantial and convincing evidence to support a claim for condonation of delay in filing an appeal under Section 5 of the Limitation Act.
The court reiterated that the burden of proving sufficient cause for delay in filing an appeal lies with the appellant, and mere ignorance or reliance on counsel is insufficient.
A formal application for condonation of delay is not necessary; oral requests sufficing with sufficient cause are valid in proceedings under the U.P. Land Revenue Act.
Point of Law : It is only after that application is allowed, appeal can be entertained and heard on merits.
No meritorious claim should be defeated on mere cause of delay especially in situation where delay was sufficiently explained.
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