ORDER

1. This is a petition filed under Article 226 of the Constitution of India being aggrieved by the order dated 18.09.2018 passed in Case No.MCA.17/2017 by First Additional District Judge, Neemuch, whereby the application of the petitioner filed under section 5 of the India Limitation Act alongwith the First Appeal has been dismissed.

2. The petitioner filed an application under section 372 of the India Succestion Act before the Civil Judge, Class I, Neemuch. The said application was allowed and succession certificate was issued in his favour. Thereafter, the department further deposited certain amount in the account of deceased employee and for claiming the said amount, the petitioner filed an application under section 376 of the Indian Successtion Act for extension of succession certificate. In the said application, the respondent no.4 appeared and claimed the amount deposited by the department. The said application was dismissed by the trial Court. Against the said order, the petitioner filed a Miscellaneous Appeal No.1656/2016 before this court instead of filling of first appeal before the District Judge. The said appeal was not maintainable therefore, the same was withdrawn on 18.10.2018 with liberty to file appeal before the Court of District Judge having jurisdiction. Thereafter, the petitioner filed an appeal before the Appellate Court alongwith application for condonation of delay.

3. The Court stated that the appeal before the High Court itself was filed with delay and therefore the petitioner was under obligation to explain the entire delay from 03.10.2015 to 06.09.2016 and dismissed the application. The appellant has stated that the appellant being widow and having kids and because of the death of her husband, she could not prefer the appeal in the appropriate forum in time. It is further stated that she was wrongly advised to file an appeal before the High Court therefore, she filed appeal before the wrong forum. The said appeal was withdrawn and the first appeal was filed with delay of 88 days, which was duly explained by the petitioner. The petitioner should not be allowed to suffer because of the mistake of cousnel.

4. There is no rebuttal to the aforesaid assertion made by the petitioner and in absence of any rebuttal to the aforesaid contention, I find that the petitioner has made out sufficient cause explaining the delay in filling the first appeal. The petitioner had filed Miscellaneous Appeal before this Court under wrong forum against the impugned order and has been prosecuting the remedy before this Court. The petitioner cannot be held to be gross negligent in prosecuting the matter, therefore, this court is of the considered view that the delay in filling the first appeal before the District Judge, is bonafide and delay is sufficiently explained, hence, the delay is condoned. The impugned order dated 18.09.2018 is quashed. The appellate authority is directed to decide the appeal in accordance with the law after affording opportunity of hearing to the parties.

5. The record of the court below be refunded forthwith.

6. With the aforesaid, the present petition stands disposed off.

(VIJAY KUMAR SHUKLA)

JUDGE Sourabh