Second Appeal No. 352/2013. Case: Brijesh Kumar Gupta Vs Mahendra Kumar Jain (Deceased) through Legal Representatives. High Court of Madhya Pradesh (India)
| Case Number | Second Appeal No. 352/2013 |
| Counsel | For Appellant: Shri K.S. Tomar, Senior Advocate with Shri J.S. Kaurav, Advocate and For Respondents: Shri N.K. Jain, Senior Advocate with Shri A.K. Jain, Advocate |
| Judges | Rohit Arya, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XLI Rules 3, 41; Order XXII Rule 4; Order XXVI Rule 9; Sections 100, 151, 96; Limitation Act, 1963 (36 of 1963) - Section 5; Madhya Pradesh Accommodation Control Act, 1961 - Sections 12(1)(e), 12(1)(A), 12(1)(b) |
| Judgement Date | October 11, 2013 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
Rohit Arya, J.
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The instance appeal under Section 100 of Civil Procedure Code has been filed against the judgment and decree dated 4/9/2013 passed in Civil Appeal No. 64/2013, whereby the First Appellate Court while dealing with the application for condonation of delay in filing the appeal, filed under Section 5 of the Limitation Act has been rejected, for the reasons stated in paras 16 and 17 of the impugned judgment, inter-alia on the grounds that the appellant had made factual incorrect statement in the said application under Section 5 of the Limitation Act, which are misleading in nature, while exercising the judicial discretion to deal with such application. Besides, appellant not only remained vigilant but also concocted the facts which are falls and misleading, as such the appellant did not come to the Court with clean hands in the matter while approaching the Court beyond the period of limitation. Application as such was found lacking in bona-fide. Under such circumstances the First Appellate Court by detailed order with comprehensive reasons dismissed the application under Section 5 of Limitation Act and resultantly the appeal has also dismissed. Facts relevant for consideration of this appeal are that the respondent Mahendra Kumar Jain (died on 18.3.2013) now, deceased had instituted eviction proceedings against the appellant/tenant in respect of suit premises situated at the 1st Floor of House No. 49/228, Madhoganj, Lashkar, Gwalior under Section 12(1)(A), 12(1)(b) and 12(i)(e) of Madhya Pradesh Accommodation Control Act. The trial Court vide judgment and decree dated 28.2.2013 upon consideration of pleading of the parties as well as oral and documentary evidence placed on record, dismissed the suit under Section 12(1)(A) and 12(1)(b) but decreed the suit under Section 12(i)(e) for bona fide need of respondent-plaintiff. Being aggrieved by the aforesaid judgment and decree the appellant preferred an appeal under Section 96 of CPC before VIII Additional District Judge, Gwalior on 6.4.2013 against dead person i.e. Mahendra Kumar Jain as respondent/plaintiff. As the respondent/plaintiff had expired on 18.3.2013, his son Dharmendra Kumar Jain submitted an application on 26.4.2013 under Section 151 of CPC before the learned First Appellate Court, wherein it was pleaded that the original plaintiff/respondent i.e. Mahendra Kumar Jain since had expired on 18.3.2013 and the appeal was filed against a dead person on 26.4.2013 the same was nullity and not maintainable in the eyes of law. It was prayed that the appeal be dismissed. In response thereto on 29.4.2013 the appellant filed an application under Order 22 Rule 4 of CPC and contended that the legal representatives of dead respondent be taken on record. The said application was opposed by the son of deceased Mahendra Kumar Jain that the provision of Order 22 Rule 4 of CPC is not applicable as it is not a case where the respondent had died during the proceedings but in-fact appeal has filed against a dead person.
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The First Appellate Court after hearing the both parties disposed off application under Section 151 of CPC filed by the appellant Dharmendra Kumar Jain and application filed by the appellant in response thereto under Order 22 Rule 4 of CPC, by detailed order and held that the appeal against the dead person was not maintainable. However, exercising the power under Order 41 Rule 3 of CPC returned the appeal memo with documents with liberty to file the appeal again with necessary amendment. The First Appellate Court further ordered that the period spent from the date of institution of appeal till passing of the order i.e. 4.4.2013 to 4.5.2013 shall be excluded while computing the period of limitation as the period spent was in pursing the remedy bona-fide.
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Pursuant to the said order the appellant filed an application for returning of memo of appeal with documents on 18.7.2013 and on 19.7.2013 the appeal memo with documents were returned to the appellant's counsel. Thereafter the appellant again submitted the appeal on 23.7.2013, which was admittedly barred by time. For condonation of delay, an application under Section 5 of Limitation Act was filed. The appellant/plaintiff in his application submitted that he was posted at Dehradun (Uttaranchal) with Insurance...
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