IN THE HIGH COURT OF MADHYA PRADESH

AT GWALIOR

BEFORE

HON'BLE SHRI JUSTICE HIRDESH

th

ON THE 13 OF JANUARY, 2026

MISC. APPEAL No. 190 of 2015

SMT.ANITA AND OTHERS

Versus

RAM KUMAR AND OTHERS

Appearance:

Shri Sanjeev Tiwari- learned Counsel for the appellants- claimants.

Shri Akhilesh Kumar Gupta- learned Counsel for the respondents No.1

and 2- driver and owner of vehicle.

Shri Ram Vilas Sharma- learned Counsel for the respondent No.3/

Insurance Company.

ORDER February 2015, which caused the delay in filing the appeal within the prescribed time. It is further contended that the claim case under Section 166 of the Motor Vehicles Act, in respect of the death of the husband of appellant No.1, was dismissed for want of prosecution vide order dated 19.07.2010. To restore the claim case, the appellants filed an application under Order 9 Rule 9 of the CPC, which was registered as MJC No. 5/2010. However, when the case was fixed for the evidence of appellant No. 1, her daughter (appellant No. 3) was ill, and as a result, appellant No. 1 was unable to attend the hearing to lead evidence. Due to her absence, MJC No. 5/2010 was dismissed vide order dated 24.03.2011. The appellants thereafter filed MJC No. 10/2013 under Order 9 Rule 9 of the CPC for the restoration of MJC No. 5/2010. In the proceedings before the Trial Court, appellant No. 1 examined herself as P.W. 1 and Sujit Singh as P.W.2. The learned Trial Court, however, dismissed the application filed under Order 9 Rule 9 of the CPC, which has led to the present appeal. It is further contended that learned Trial Court’s order is contrary to settled legal principles and deserves to be set aside. The learned Trial Court wrongfully dismissed their application on the ground that they had failed to appear when the case was fixed for evidence, despite appellant No. 1 filing a medical certificate (Exhibit P/1) to support her claim that her daughter was seriously ill. The learned Trial Court rejected the medical certificate on the basis that the appellants had not filed any medical prescription to establish that appellant No. 3 was unwell for a period of three months. The appellants also challenge the learned Trial Court’s assumption that they were not interested in the matter. They contend that had they not been interested in the case, they would not have filed the application for restoration. The learned Trial Court’s conclusion that the appellants were not interested is based on mere presumption, which is not supported by any concrete evidence. The appellants further submit that the learned Trial Court committed a legal error in dismissing the application solely because of the non-appearance of their counsel. They contend that, as per settled law, the litigants should not suffer due to the mistake or negligence of their counsel. In this case, the counsel’s illness was the cause of delay, and a lenient view should have been adopted to restore the case in the interest of justice.

The instant Miscellaneous Appeal has been filed under Order 43 Rule

1(C) of Civil Procedure Code (CPC) by the claimants-appellants, challenging the order dated 26.02.2014 passed by the Additional District Judge to the Court of First Additional District Judge, Datia, in MJC No.10 of 2013. Along with the appeal, the claimants have filed an application (IA No. 1620 of 2015) under Section 5 of the Limitation Act for condoning the delay

in filing the appeal.

2. It is contended on behalf of appellants that after the passing of the

impugned order, they immediately contacted their counsel. However, their counsel became seriously ill and remained under treatment from July 2014 to

3. On the other hand, learned Counsel for the respondents oppose the appeal on the grounds of delay and laches. They argue that the appellants have failed to justify the delay in filing the appeal. The respondents submit that the delay of several years in filing the appeal, coupled with the appellants' repeated failure to take timely action, indicates negligence and