Mathura vs Kushma

Court
Madhya Pradesh High Court

NEUTRAL CITATION NO. 2026:MPHC-JBP:85819
1 SA-1906-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 1906 of 2024
CNR No.: MPHC010464242024
MATHURA AND OTHERS
Versus
KUSHMA AND OTHERS
Appearance:
Shri Sanjay Sharma - Advocate for the appellants.
Shri Anmesh Shrivastava - PL for the respondent no.3/State.
Reserved on : 06.07.2026
Pronounced on : 27.10.2026
J U D G M E N T
This appeal under Section 100 of the Code of Civil Procedure has
been preferred by the appellants/plaintiffs, being aggrieved by the judgment
dated 03.07.2024 passed in MJC No. 3 of 2024 by the Additional District
Judge, Amla, District Betul, whereby application under Section 5 of the
Limitation Act filed by them for condonation of delay in filing the appeal
has been rejected and, in consequence, the appeal has been dismissed as
barred by time, and the judgment and decree dated 27.10.2023 passed in RCS
14A/2023 dismissing their claim has been affirmed.
2. The plaintiffs had instituted an action against the defendants for
declaration, partition, delivery of separate possession of their share and for
permanent injunction. The same was contested by the defendants by filing
their written statement. By judgment and decree dated 27.10.2023, the
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 27-10-2026
17:01:25

NEUTRAL CITATION NO. 2026:MPHC-JBP:85819
2 SA-1906-2024
plaintiffs' claim was dismissed by the trial Court. Being aggrieved by the

same, they preferred an appeal under Section 96 of the CPC before the lower
appellate Court. Since the same was barred by time, they also filed an
application under Section 5 of the Limitation Act for condonation of delay in
filing the appeal. The application was contested by respondents No. 1 and 2
by filing their reply to the same. By the impugned judgment, the application
has been rejected by the lower appellate Court by finding that no sufficient
cause has been furnished by the appellants for the delay in filing of the
appeal and the day-to-day explanation has not been given, and in
consequence, the appeal has been dismissed as barred by time.
3. By order dated 06.07.2026, the appeal was admitted on the
following substantial question of law:
"Whether the lower appellate Court has committed a
gross error of law in rejecting the application under
Section 5 of the Limitation Act filed by the appellant for
condonation of delay in filing the appeal and, in
consequence, dismissing the appeal itself as barred by
time?"
4. I have heard the learned counsel for the parties and have perused
the record.
5. The delay in preferring of the appeal before the lower appellate
Court was about 40 days. In the application for condonation of delay, the
appellants had specifically stated that they were not informed by their earlier
counsel as regards passing of the judgment and decree by the trial Court.
With great difficulty, he gave the file of the case to them, but did not give
information as regards the decision. Thereafter, the appellants contacted
another counsel and obtained information of their case and, for the very first
time on 04.01.2024, acquired knowledge of passing of the judgment and
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Signed by: MONIKA
CHOURASIA
Signing time: 27-10-2026
17:01:25

NEUTRAL CITATION NO. 2026:MPHC-JBP:85819
3 SA-1906-2024
decree by the trial Court, after which they applied for its certified copy and

have filed the appeal immediately upon receipt of the same.
6. The lower appellate Court has not found the cause shown by the
appellants to be sufficient by holding that it cannot be believed that their
counsel did not give information as regards the judgment and decree to them,
which reason appears to be false. If the appellants had stated that their
counsel had not informed them about the result of the case, then there was no
reason for the lower appellate Court to disbelieve the same. It is always the
counsel who appears before the Court and not the party himself. If judgment
and decree had been passed by the trial Court and counsel for appellants did
not inform them about the same, it should have been disbelieved. The
appellants, in normal course, contacted their counsel for ascertaining the
outcome of their case, but were only informed that it has been decided, but
the fate of the same was not informed to them. It is then that they contacted
another counsel and obtained the information.
7. The lower appellate Court has proceeded with a view to find fault
in the case of the appellants and has dissected their reasons threadbare,
which was not required to be done since the delay in preferring of the appeal
was only 41 days. 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,
particularly when the delay is not inordinate and is not actuated by mala
fides. It is not the case of respondents that the delay in filing of the appeal
was on account of any mala fide by the appellants. The claim of appellants
had been dismissed by the trial Court and they would not gain anything by
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Signed by: MONIKA
CHOURASIA
Signing time: 27-10-2026
17:01:25

NEUTRAL CITATION NO. 2026:MPHC-JBP:85819
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delaying preferring appeal against the same. In my opinion, the appellants

had shown sufficient cause for the delay in filing of the appeal, which hence
ought to have been condoned, but in refusing to do so, the lower appellate
Court has acted illegally.
8. Consequently, the substantial question of law as framed is
answered in favour of the appellants and against the respondents. The delay
in preferring of the first appeal by the appellants is condoned. The judgment
and decree passed by the lower appellate Court is set aside and the matter is
remanded back to it to decide the first appeal preferred by the appellants on
merits.
9. ​ The appeal, is accordingly, allowed and disposed of. ​ No costs. Let
the records of the Courts below be sent back to the lower appellate Court.
(PRANAY VERMA)
JUDGE
m/-

Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 27-10-2026
17:01:25