Jagdish Prasad Agrawal Vs Virdi Chand Agrawal

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2025:CGHC:51794

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 381 of 2017

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1 - Jagdish Prasad Agrawal S/o Late Shri Prabhulal Agrawal, Aged About 66 Years R/o C - 366, Samta Colony, Raipur, Tahsil And District Raipur Chhattisgarh..... Plaintiff ., Chhattisgarh

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... Petitioner(s)

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versus

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1 - Virdi Chand Agrawal S/o Shri Prabhulal Ji Agrawal, Aged About 64 Years R/o Ravishankar Shukla Road, Raipur Tahsil And District Raipur Chhattisgarh., Chhattisgarh

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2 - Rajendra Prasad Agrawal S/o Shri Prabhulal Ji Agrawal, Aged About 59 Years R/o Ravishankar Shukla Road, Raipur Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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3 - Anguri Bai Agrawal W/o Virdi Chand Agrawal, Aged About 62 Years R/o Ravishankar Shukla Road, Raipur Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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4 - Vimla Bai Agrawal W/o Rajendra Prasad Agrawal, Aged About 50 Years R/o Ravishankar Shukla Road, Raipur Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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5 - Narayan Agrawal S/o Virdi Chand Agrawal, Aged About 44 Years R/o Ravishankar Shukla Road, Raipur Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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6 - State Of Chhattisgarh, Through Collector, Durg Chhattisgarh...... Defendants ., District : Durg, Chhattisgarh

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... Respondent(s)

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For Petitioner(s)	: Mr.Raj Shenghale,Advocate
For Respondent/ State	: Mr. Vedant Shandangi, P. L.
Forprivaterespondents	: Mr.RazaAli,Advocate

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(Hon’ble Shri Justice Sachin Singh Rajput)

Order on Board

16/10/2025

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Challenge in this writ petition is to an order dated 21.03.2017 passed in MCA No.275/2013 by the Court of First Additional Judge of First Additional District Judge, Durg (CG) by which an appeal filed under Order 43 Rule 1 of CPC by the petitioner herein was dismissed confirming the order dated 21.06.2012 passed in MJC No.09/11 by the Additional Civil Judge Class- 1 Bhilai- 3 (CG) by which the application of the petitioner under Order 9 Rule 9 of CPC was dismissed.

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Learned counsel for the petitioner submits that a civil suit for declaration of title and permanent injunction in respect of suit properties and agricultural land comprised in piece of Khasra No. 37, 47, 40, 45, 44 area 2.22, 2.02, 2.02, 2.02, 0.73 Hectare respectively situated at village Amleshwar Patwari Halka No.5, RIC Bhilai-3, Tahsil Patan, District Durg (CG) was filed by the petitioner before 5^th Civil Judge, Class-2 Durg (CG). He further submits that the petitioner has engaged Advocate Mr. Jainarayan Sharma to prosecute the civil suit. It has been further argued that the civil suit was filed in November, 2024 and Mr. Jainarayan Sharma, Advocate was contesting the civil suit on his behalf. It was informed by Mr. Sharma that the regular presence of the petitioner would not be necessary in the suit, and he would be informed as soon as his appearance was required. The suit remained pending for almost two years, during which Mr. Sharma regularly appeared. Unfortunately, on 17.03.2006, the said civil suit was dismissed for want of prosecution as his counsel failed to appear before the learned trial Court. Later on, the counsel appearing on behalf of the petitioner in the civil suit also passed away in November, 2007. Hence the petitioner was under the impression that his case was being looked after by his advocate and that his civil suit was still pending consideration before the trial Court. He received an order on 26.03.2010 from the Court of Naib Tahsildar, Bhilai-3, in Revenue Case No. 9/A-6/year 2009-10, dated 16.03.2010. Upon receiving a certified copy and on perusal, he came to know that his civil suit had been dismissed for want of prosecution. By that time, sufficient time had already elapsed. In the first week of April, 2010, the petitioner tried to contact his counsel Mr. Jainarayan and came to know that he had passed away in November, 2007 and that all files had been returned

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by his associates advocates. Later, in the first week of April, 2010, he contacted the associate advocates and was informed by them that the civil suit, which was pending before the Court of Durg, had been dismissed for want of prosecution on 16.03.2010. Thereafter, an application under Order 9 Rule 9 of CPC along with an application under Section 5 of the Limitation Act, 1963 explaining the delay was filed by the petitioner after obtaining necessary documents. The said application for condonation of delay was dismissed by the Court of Civil Judge Class-1 Bhilai-3, District Durg, vide order dated 21.06.2012, an appeal against which was also dismissed by the appellate Court vide the impugned judgment dated 21.03.2017. He further submits that normally in the civil litigation, the regular appearance of the parties may not be necessary. He submits that the petitioner had engaged a counsel who was looking after his case for almost 2 years, and the petitioner was under the impression that his case was being looked after by his counsel. Unfortunately, his counsel also died in the year 2007, and the petitioner only came to know about the dismissal of the case sometime in the last week of March, 2010. After obtaining necessary documents, the application under Order 9 Rule 9 of CPC along with an application under Section 5 of Limitation Act was filed before the trial Court explaining the sufficient cause for the delay in making such applications. He submits that the right of the petitioner is involved in the civil suit, and he is claiming the declaration of his title and the suit property. Injunction is also claimed against the respondent/defendant. He submits that the petitioner would be precluded from filing a subsequent suit and if the civil suit is not restored to its original number, it would cause irreparable loss to the petitioner, including loss of his right and title to the suit property. He placed reliance on the decision of the Supreme Court in the matter of N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7 SCC 123 and also in the matter of M. K. Prasad Vs. P. Arumugam reported in (2001) 6 SCC 176 . He further submits that both the Courts below failed to appreciate that the petitioner was able to show sufficient cause for delay in preferring the application for restoration of the civil suit under Order 9 Rule 9 of CPC, therefore, the impugned orders may be set aside, and

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the application of the petitioner under Order 9 Rule 9 of CPC may be decided on its own merits.

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Per contra Mr. Vedant Shadangi, Panel Lawyer learned counsel for the respondent No.6/State submits that the dispute is between the petitioner and private respondents.

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Mr. Raza Ali, learned counsel for respondents No. 1 to 5 heavily opposes the submissions made by learned counsel for the petitioner and submits that the delay is enormous. He contends that the petitioner ought to have been vigilant in prosecuting his civil suit and that, as per the petitioner’s own submissions, the learned Advocate who was appearing for the petitioner had already died in 2007. It is very difficult to accept that the petitioner was not in touch with his Advocate for all these 3 years. Since the petitioner had been negligent in prosecuting the civil suit, both the Courts below have rightly held that the petitioner could not show sufficient cause for condonation of delay in filing the application under Order 9 Rule 9 of CPC.

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Heard learned counsel for the parties and perused the record.

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The period of delay may not always be fatal for allowing an application for condonation of delay. Sometimes, a long delay may be condoned and at other times, a short period may not be condoned. What is sufficient is the cause which the party places before the Court to show why the delay occurred. In the case in hand, the civil suit was filed by the petitioner in 2004. It is also apparent from the record that he had engaged a counsel to look after his case. It appears that a written statement was also filed by the defendants in the civil suit, and unfortunately, on 16.03.2010 the suit was dismissed for want of prosecution as the counsel could not appear and another unfortunate part is that the original counsel prosecuting the case of the petitioner has also passed away. The submission has been made by Mr. Raj Shenghale, Advocate that he came to know about the dismissal of the case in March, 2010 from some certified copy of orders passed by Naib Tahsildar. This was about 3 years after the death of his counsel, however from the perusal of application under Order 9 Rule 9 of CPC it is quite vivid that he was assured by his counsel that he would be informed when his presence was required in the civil suit. It is a common knowledge that the

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parties in a civil litigation do not appear regularly on every date of hearing of the case. They are always represented through their counsel on all hearing dates when the lead evidence or evidence of the parties is needed in the civil suit. The purpose of condonation of delay is not to frustrate the rights of the parties but to ensure that the parties were not involved in dilatory tactics and the cause of delay is bonafide. The Court comes to a conclusion that the reasons which have been assigned by the petitioner can constitute a sufficient cause, would not refrain this Court to condone the delay even if the delay is huge. The Supreme Court in the case of M. K. Prasad (Supra) observed as under:-

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“ In construing Section 5 of the Limitation act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal & Ors. v. Rewa Coalfields Ltd. [AIR 1962 SC 361] held:

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"Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period"? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal & the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16

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was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr.Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous.

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In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is imputable to the appellant."

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The Supreme Court in the case of N. Balakrishnan (Supra) held as under:-

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“A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to

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turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.

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In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date.”

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Parameters to allow the application for condonation of delay has been well settled by the judgment of Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 SCC 450 wherein the Hon’ble Supreme Court in Para 21 observed as under:-

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“21. From the aforesaid authorities the principles that can broadly be culled out are:

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i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

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ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

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iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

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iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant S.A. No.331 of 2013 not to expose the other side unnecessarily to face such a litigation.

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xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking Page 7 of 8 recourse to the technicalities of law of limitation.

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xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

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xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

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Perusal of the plaint appended with the writ petition indicates that the petitioner has sought a declaration of his title to the suit property and has also sought an injunction against the respondents. It is also true that the rights of the parties are still to be determined, and the suit was dismissed in default without there being any adjudication on the merits of the case determining the rights of the respective parties. It is not the case that the filing of the plaint would be sufficient to hold that the petitioner would be granted the relief as claimed. The rights of the parties and the relief claimed by the petitioner would be determined after adducing the evidence to prove their respective pleadings. In the instant case, the respondents/defendants herein would have all the right to agitate and refute the claim of the petitioner but if the dismissal of the civil suit is not set aside and the civil suit is not restored to its original number, it would curtail the right of the petitioner in the future also. Thus, on the basis of analysis stated above and also placing reliance on the judgments cited by learned counsel for the paries, this Court is of the opinion that both the Courts below committed an illegality in rejecting the application under Section 5 of Limitation Act. Thus impugned order dated 21.03.2017 is set aside and the application under Section 5 of Limitation Act is allowed, delay in filing the application under Order 9 Rule 9 of CPC is hereby condoned. MJC No.09/2011 is restored to its original number, and it is expected that the learned trial Court would decide the application under Order 9 Rule 9 of CPC for restoration expeditiously in accordance with law.

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Thus the writ petition is allowed subject to cost of Rs.5000/- to the defendants to be paid by the petitioner before the trial Court.

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Parties are directed to appear before the learned trial Court on 1^st December, 2025.

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No order as to cost.

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Sd/-

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Digitally
signed by
PARUL
PARUL MITTAL
MITTAL Date:2025.10.29 Parul
14:41:54
+0530

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(Sachin Singh Rajput) JUDGE

Jagdish Prasad Agrawal v. Virdi Chand Agrawal

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Jagdish Prasad Agrawal v. Virdi Chand Agrawal

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