Swami Prasad vs Bhagwandas

NEUTRAL CITATION NO. 2026:MPHC-JBP:67313
1 SA-981-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
nd
ON THE 2 OF SEPTEMBER, 2026
SECOND APPEAL No. 981 of 2010
SWAMI PRASAD AND OTHERS
Versus
BHAGWANDAS AND OTHERS
Appearance:
Shri Pradeep Kumar Naveria - Advocate for Appellants.
Shri Shiv Kumar Sharma - Advocate for Respondents.
JUDGMENT
This appeal under Section 100 of CPC has been preferred by the
appellant/defendant being aggrieved by the judgment and decree dated 12.12.2009
passed by the lower Appellate Court, whereby upon rejection of his application
under Section 5 of Limitation Act for condonation of delay in filing the appeal, the
appeal itself has been dismissed as barred by time.
2. Being aggrieved by the judgment and decree dated 26.07.2025 passed by
the trial Court, the appellant/defendant preferred an appeal under Section 96 of
CPC before the lower Appellate Court. Since the same was barred by time, he also
filed an application under Section 5 of Limitation Act for condonation of delay in
filing the appeal. The application was contested by the plaintiff and has been
rejected by the Appellate Court by the impugned order and consequently, the
appeal has also been dismissed as barred by time.
3. By order dated 23.01.2012, the appeal was admitted on the following
substantial question of law :

Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 03-09-2026
17:04:49

NEUTRAL CITATION NO. 2026:MPHC-JBP:67313
2 SA-981-2010
“Whether in the facts and circumstances of the case the appellate Court
committed an error of law in rejecting the application under section 5 of the
Limitation Act in view of the well settled legal position that liberal approach
in the matter of condonation of delay is required to be adopted?”

4. I have heard learned counsel for the parties and have perused the record.
5. In his application, under Section 5 of Limitation Act for condonation of
delay in filing the appeal, the appellant had specifically stated that he is old and
aged and is not keeping good health. In December, 1998, he had suffered paralysis
for treatment of which he had come to Global Heart Hospital, Jabalpur on
22.01.1999 from where he was discharged on 28.01.1999. However, in the
meanwhile, he had to get a check-up of heart done. He did not recover in the
hospital hence, got himself further examined in District Hospital, Panna. On
03.07.2005, he suffered third attack of paralysis, due to which he could not take
information as regards the case. He had been totally paralyzed and was not in a
situation to speak and understand anything. He was taken to Jabalpur for treatment
where he remained under treatment for a period of two years. Due to his illness
and treatment, he could not gather information as regards the case. On 10.12.2007,
his counsel came to him and took his vakalatnama stating that a case has been
filed on behalf of respondent in which his signatures are required. Relying upon
his counsel, he put his thumb impression thereupon. He was not aware as to for
what purpose the same was being taken. In the meanwhile, the judgment and
decree was passed by the trial Court which was put to execution by the
respondent. The appellant never had any knowledge of the execution proceeding
and his counsel did not inform him about the same. He ought not to be penalized
for the fault of his counsel.
6. The application was contested by the respondent by filing reply to the
same and has been rejected by the lower Appellate Court finding that the cause
shown by the appellants is not sufficient and the delay cannot be condoned.
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 03-09-2026
17:04:49

NEUTRAL CITATION NO. 2026:MPHC-JBP:67313
3 SA-981-2010
7. Though the learned counsel for the respondent has submitted that the

judgment passed by the lower Appellate Court is perfectly justified but it is seen
that along with the application, the appellant had filed the documents as regards
his illness, wherein he is shown to be suffering from paralysis and heart disease.
He is shown to have been under treatment for a considerable period of time and
his treatment appears to have been continued for one disease or the other. It
appears that he was suffering from paralysis as well as was having heart disease. In
such circumstances, the appellant was not able to take care of himself hence, it
cannot be said that there was any malafide on his part in not attending the case.
Since the decree had been passed against the appellant and if he was aware of the
same, he would have certainly preferred an appeal against the same since not
preferring the appeal, despite being aware of the judgment and decree of the trial
Court, would be against his interests. No malafide can be attributed to the
appellant for the delay in filing of the appeal.
8. The appellant categorically stated that his counsel had taken his
signatures on vakaltnama but he could not understand as to for what purpose, they
are being taken. It is only when the order in the execution proceeding was passed
and was sought to be implemented that he came to know about the judgment and
decree passed by the trial Court. If the appellant was not communicated of the
proceedings of the case by his counsel, he cannot be made to suffer for the same.
9. The appellate Court has proceeded with a view to find fault with the
reasons given by the appellant, whereas in my opinion, he had given reasonable
and sufficient cause for the delay in filing of the appeal which was bonafide. It is
well settled that in the matters of condonation of delay a liberal view ought to be
adopted so as to advance substantial justice in case, the reason is not actuated by
any malafide or ill intention which is not the case presently.
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 03-09-2026
17:04:49

NEUTRAL CITATION NO. 2026:MPHC-JBP:67313
4 SA-981-2010
10. In the available facts of the case, the Appellate Court ought to have

condoned the delay in filing of the appeal but in not doing so, it has acted
illegally.
11. Consequently, the substantial question of law as framed is answered in
favour of the appellant and against the respondents. The delay in filing of appeal
before the lower Appellate Court is condoned and the judgment and decree passed
by the lower Appellate Court is set aside and the matter is remanded back to it to
decide the appeal preferred by the appellants on merits.
12. The appeal is accordingly, allowed and disposed of.
(PRANAY VERMA)
JUDGE
Shub

Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 03-09-2026
17:04:49