Smt. Devaki Bai Shrivastava vs Guru Govind Singh Educational Society

NEUTRAL CITATION NO. 2026:MPHC-JBP:67655
1 SA-2124-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 2124 of 2024
SMT. DEVAKI BAI SHRIVASTAVA
Versus
GURU GOVIND SINGH EDUCATIONAL SOCIETY
Appearance:
Shri Mahendra Pateriya - Advocate for the petitioner.
Ms. Priyanka Tiwari - Advocate for respondent No.1.
Shri Ram Ji Pandey - Government Advocate for respondent/State.

Reserved On :-03.07.2026
Pronounced On :-03.09.2026
JUDGMENT
1. This appeal under Section 100 of the CPC has been preferred by
the defendant/appellant, being aggrieved by the judgment and decree dated
11.07.2024 passed by the lower appellate court, whereby the application
preferred by her under Section 5 of the Limitation Act for condonation of
delay in filing the first appeal under Section 96 of the CPC against the
judgment and decree passed by the trial court has been rejected and in
consequence, the appeal has been dismissed as barred by time.
2. By order dated 3.7.2026, the appeal was admitted on the following
substantial question of law:
"Whether in the facts and circumstances of the case, the lower
appellate Court committed an error of law in rejecting the
application under Section 5 of the Limitation Act filed by the
appellant in condonation of delay in filing the appeal and in
consequence dismissing the appeal as barred by time?"
3. Learned counsel for the appellant has submitted that the delay in
Signature Not Verified
Signed by: VIBHA PACHORI
Signing time: 03-09-2026
17:09:31

NEUTRAL CITATION NO. 2026:MPHC-JBP:67655
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preferring of the appeal was only 31 days and cannot be said to be so

inordinate that the same ought not to have been condoned. The appellant had
not acquired knowledge of the judgment and decree passed by the trial Court
and immediately upon acquiring its knowledge, has preferred the appeal. The
cause shown by her was reasonable and sufficient cause and ought to have
been accepted by the lower appellate Court.
4. Per contra, learned counsel for the respondent has submitted that
the appellant was ex-parte before the trial Court itself and had not even filed
her written statement contesting the plaintiff's claim. She had not appeared
before the trial Court on a number of occasions and the ex-parte decree was
passed against her. She ought to have preferred an application under Order 9
Rule 13 of the CPC against the same and not a regular first appeal. The
appellate Court was hence right in rejecting the application for condonation
of delay filed by the appellant.
5. I have heard the learned counsel for the parties and have perused
the record.
6. The judgment was passed by the trial Court on 07.11.2022. Appeal
against the same has been preferred by the appellant on 13.01.2023. The
delay was only of a period of 31 days. In her application for condonation of
delay, the appellant had stated that in the year 2021, she had contacted
COVID-19 virus and due to total lockdown, she could not personally gather
information of the case from her counsel. She could not contact him. In New
Year of 2023, she met her brother, who is also an advocate and asked for
information from him, from which it came to her knowledge that her counsel
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had not appeared before the trial Court since there was no contact with her.

Thereafter, she acquired knowledge of the judgment and decree passed by
the trial Court and has then promptly preferred the appeal against the same
without any further delay.
7. The appellant was required to show sufficient cause for the delay
in preferring of the appeal from the time of passing of the judgment and
decree by the trial Court up to the date of filing of the appeal. Her conduct
during the course of trial was immaterial for the said purpose. Thus, even if
before the trial Court the counsel for the appellant had not filed the written
statement, it would be wholly immaterial. The appellant categorically stated
that due to contacting COVID-19, she could not contact her counsel. The
reason was a probable reason and ought to have been accepted by the lower
appellate Court.
8. It has further been observed by the lower appellate Court that
against the ex-parte judgment and decree passed by the trial court, the
appellant ought to have preferred an application under Order 9 Rule 13 of
the CPC for setting aside the same. While the remedy of filing an application
under Order 9 Rule 13 of the CPC was available to the appellant but that was
a concurrent remedy available to her. She could have filed such an
application or could have preferred an appeal under Section 96 of the CPC
before the lower appellate Court. She has exercised the discretion in
choosing the latter remedy, in which it cannot be said that any fault has been
committed by her.
9. The delay in filing of the appeal was merely 31 days and had been
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Signed by: VIBHA PACHORI
Signing time: 03-09-2026
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4 SA-2124-2024
properly explained by the appellant. The lower appellate Court ought to have

accepted the reasons given by her and should have held that there was
sufficient and reasonable cause for the appellant in not preferring the appeal
within time. It is well-settled that in the matter of condonation of delay, a
liberal view ought to be adopted so as to advance substantial justice in case
the delay is not actuated by mala fide, which is not the case presently.
10. Thus, in view of the aforesaid discussion, the substantial
question of law as framed is answered in favor of the appellant and against
the respondent. The delay in preferring of the appeal by the appellant before
the lower appellate Court is condoned and the judgment and decree passed by
it is set aside and the matter is remanded back to it to decide the appeal
preferred by the appellant on merits.
10. The appeal is accordingly allowed.
11. No costs.
(PRANAY VERMA)
JUDGE
V

Signature Not Verified
Signed by: VIBHA PACHORI
Signing time: 03-09-2026
17:09:31