Chironji And Ors. vs State Of Madhya Pradesh And Anr.

Present Civil revision has been filed against the order dated 1st, April 2019 passed in MCA number 16/ 17 whereby the order dated 4th, July 2017 passed in civil suit no. 200002/15 has been confirmed.

It is alleged by the counsel for the petitioner that a civil suit for declaration has been filed before the learned trial court. The plaintiff's case was listed on 14th, October 2015 but neither the plaintiff nor the counsel appeared before the trial court and the civil suit was dismissed for want of prosecution. It is submitted by the counsel for the petitioner that the plaintiff was out of station and counsel could not attend the court proceedings as he was attending his father's 13th day rituals, therefore, an application for restoration of civil suit was filed on 2nd, December 2015. Reply to the aforesaid application was filed by the defendants and they have approached for dismissal of the application on the ground that the same has been filed with some delay.

Learned trial court has dismissed the application filed by the petitioner for restoration of the civil suit on the ground that the same is not sustainable for the reasons mentioned therein and as no application for condonation of delay has been filed the application for restoration was dismissed and appeal was preferred by the plaintiff before the first appellate court and the appellate court has also dismissed the appeal whereby the order of trial court was confirmed. Thereafter the present revision has been filed seeking restoration of civil suit on the ground that the learned trial court as well as first appellate court have committed an error in law in allowing the application for restoration as the specific grounds were taken by the plaintiff that the plaintiff was not well and the counsel was not available owing to the fact that he was attending 13th day rituals of his father. It is further alleged that liberal view should have been taken by the the courts below while dealing with the application for restoration. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of Madhya Pradesh and Anr v. Pradeep Kumar and Anr. reported in (2000) 7 SCC 372 and has prayed for allowing of revision and restoration of the civil suit.

Per contra Shri Anand Bhardwaj counsel appearing for State has opposed the relief claimed by the petitioner and has contended that the application for restoration of civil suit was filed with delay without there being any application for condonation of delay in filing the restoration application. He has further contended that the present revision has been filed with a delay. It is submitted that had the plaintiff and his counsel being vigilant about their case then the aforesaid situation would not have arisen and he has prayed for dismissal of the revision.

Heard learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that in the application for restoration of civil suit it is clearly mentioned that on 14th, October 2014 the plaintiff had gone out of station for some important work and the counsel appointed by him was busy in 13th day rituals of his father. Therefore he could not attend the case and the civil suit was dismissed, however, the application dated 2nd, December 2015 was filed with some delay without there being any application of the condonation of delay. In such circumstances at least an opportunity of curing the defect should have been granted by the trial court being curable defect. The aforesaid aspect was considered by the Hon'ble Supreme Court in the case of State of MP (supra) wherein in similar circumstances the hon'ble Supreme Court has considered the aspect that an application being file without accompanying application for condoning of delay and has held as under:-

"10. What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3-A? It must be noted that the Code indicates in the immediately preceding rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is 1o be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without accompanying the application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay.

It is true that the pristine maxim "Vigilantibus Non Dormientiobus Jura Subveniunt" (Law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine".

It is further seen that restoration application was preferred on 2nd, December 2015 with a delay of approximately 45 days and the trial court has dealt with the aforesaid application and has passed the order dated 14th, March 2017. The learned trial court has considered the aspect that there is no application filed for condonation of delay in filing restoration application and in absence of any explanation of delay the application itself is not maintainable, however, the aforesaid being the curable defect an opportunity to file application should have been granted by the learned trial court but the final order was passed on 14th, March 2017 whereby the application for restoration was rejected. Appeal was preferred by the plaintiff. The appellate court has upheld the order passed by the learned trial court and the appeal was dismissed. Learned trial court and the appellate court have not taken into consideration the aspect that non filing of application under section 5 of the Limitation Act explaining the delay is curable defect which could be cured if opportunity is granted.

But, both the courts below without considering the aforesaid aspect and without granting opportunity to the petitioner to cure his fault has out-rightly passed the order whereby the civil suit was dismissed.

Considering the judgement of the Hon'ble Supreme Court in the aforesaid case and looking to the facts and circumstances of the case, this court deems it appropriate to grant opportunity to the plaintiff, although, the present civil revision has been filed with a delay of two days.

Accordingly, the Civil revision is allowed. Civil suit No. 6-A/2015 is directed to be restored to its original number subject to payment of cost of Rs.1000 to be deposited with the Legal Services within a period of seven days from the date of passing of the order.