Smt. Usha vs Rajendra Kumar Gaur

NEUTRAL CITATION NO. 2026:MPHC-GWL:26570
1 CR-511-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
nd
ON THE 2 OF SEPTEMBER, 2026
CIVIL REVISION No. 511 of 2018
SMT. USHA AND OTHERS
Versus
RAJENDRA KUMAR GAUR
Appearance:
Shri Rohit Bansal - Advocate for the applicants.
Shri Sunil Kumar Jain - Advocate for respondent no.1.
ORDER
1. The applicants have filed this civil revision under Section 115 of
CPC, challenging the order dated 02.06.2018 passed by the Sixth Additional
District Judge, Shivpuri in MJC No.37/2018 whereby the application under
Section 5 of Limitation Act was rejected and consequently, the appeal filed
by them under Order XLIII Rule 1(r) of CPC has been dismissed.
2. The facts necessary for the decision of this revision are that one
Rajendra Kumar Gaud filed a suit for declaration of title and permanent
injunction in respect of a piece of land and also in relation to a dilapidated
house and chabutra against his brother Surendra Kumar Gaud and applicants
herein. The applicants herein are the wife and daughter of Surendra Kumar
Gaud.
3. The suit was filed on 06.08.2012 and an ex parte order for
maintaining status quo was passed on 30.08.2012. The application was
Signature Not Verified
Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM

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ultimately partly allowed by the trial court on 29.11.2012. The temporary

injunction prayed for in relation to the dilapidated house and chabutra was
declined. The respondent herein filed an appeal challenging the order passed
by the trial court before the appellate court. The appeal was allowed on
17.12.2012 and a temporary injunction was issued in relation to the house
also.
4. Alleging violation of the temporary injunction order, the respondent
filed an application under Order XXXIX Rule 2-A of CPC against the
applicants and Shri Surendra Kumar Gaud. The application was filed on
15.03.2013. It is alleged by the applicants that they could not file the reply to
the said application and the witnesses examined by the respondent were also
not cross-examined by their lawyer. The application under Order XXXIX
Rule 2-A of CPC was ultimately allowed by the trial court on 30.06.2016,
directing the civil imprisonment of the applicants and Surendra Kumar Gaud
for two months.
5. While the aforesaid case under Order XXXIX Rule 2-A of CPC was
pending, the suit was decreed by the trial court on 28.01.2014. The
respondent was declared owner of the land and dilapidated house/chabutra.
The applicants and Surendra Kumar Gaud challenged the judgment and
decree of the trial court, which was partly allowed on 30.04.2015, and the
judgment and decree with regard to the dilapidated house/chabutra was set
aside.
6. It appears that in furtherance of the order dated 30.06.2016 passed
under Order XXXIX Rule 2-A of CPC, Surendra Kumar Gaud was arrested
Signature Not Verified
Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM

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and sent to civil imprisonment. The appeal against the order dated

30.06.2016 was filed on 14.05.2018 i.e. after a delay of almost two years. An
application under Section 5 of the Limitation Act was also filed seeking
condonation of delay.
7. The appellate court rejected the application for condonation of delay
by its order dated 02.06.2018. As a result thereof, the appeal itself was
dismissed as time-barred. Challenging the said order, the present civil
revision has been filed.
8. The learned counsel for the applicants submits that the order was
passed by the trial court, based upon the unilateral evidence of the
respondent. He referred to para 10 of the judgment and decree dated
30.04.2015 passed in Civil Appeal No.2-A/2014 and submitted that the
appellate court has recorded the finding that the construction was existing
prior to the filing of the suit. He thus submits that the order passed by the
trial court under Order XXXIX Rule 2-A of CPC runs contrary to the finding
given by the appellate court. The learned counsel further argued that the
judgment and decree passed by the trial court on 28.01.2014 and the one
passed by the first appellate court on 30.04.2015 were not placed before the
trial court for consideration of the application under Order XXXIX Rule 2-A
of CPC.
9. The learned counsel further argued that since the final judgment and
decree passed by trial court was already set aside in appeal, the applicants
were under the impression that the order is not required to be challenged. It is
his submission that when Surendra Kumar Gaud was arrested, the applicants
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Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM

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herein were under mental trauma and at this stage they realised that the order

passed by the trial court under Order XXXIX Rule 2-A CPC should be
challenged by them. For the aforesaid reasons, the applicants could not file
the appeal against the order dated 30.06.2016. It is his submission that the
application for condonation of delay ought to have been allowed by the
appellate court. The rejection of the appeal as time-barred, has caused serious
prejudice to the applicants. The learned counsel also points out that applicant
no.1 is aged about 58 years and applicant no.2 is a young girl. If they are sent
to jail, the same would tarnish their image and cause serious prejudice to
them. Learned counsel thus prayed for a lenient view in the matter only for
the purpose of condonation of delay in filing the appeal.
10. On the other hand, learned counsel appearing for the respondents
supported the impugned order. It is his submission that the appeal was filed
after a delay of almost two years, for which there is no satisfactory
explanation given by the applicants. As per his submission, the appellate
court was justified in rejecting the application and the appeal as time-barred.
11. Considered the submissions and perused the record.
12. From the explanation offered by the applicants in the application
under Section 5 of the Limitation Act, the delay in filing the appeal cannot
be said to be wholly unjustified. By the time order under Order XXXIX Rule
2-A CPC could be passed, the judgment and decree passed by trial court was
set aside. As per the submissions of learned counsel for applicants, appellate
court has rendered a finding that the construction was already existing on the
date of filing of suit. This should have been placed before the trial court. It is
Signature Not Verified
Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM

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also a fact that in furtherance of the order dated 30.06.2016, Surendra Kumar

Gaud i.e. the husband of applicant no.1 and father of applicant no.2, was sent
to civil prison. The submission of applicants’ counsel that since the judgment
and decree of trial court was already set aside in appeal, the applicants were
under the impression that they are now not required to challenge the
impugned order, also cannot be said to be unfounded. They could not take a
decision to file the appeal against the order dated 30.06.2016.
13. Apart from the aforesaid finding of the first appellate court made
in para 10 of its judgment dated 30.04.2015 passed in Civil Appeal No.2-
A/2014, is also material. Since, at the time of consideration of the application
under Order XXXIX Rule 2-A of CPC, the civil suit as also the first appeal
were disposed of, the parties, including the respondent, ought to have placed
the judgment and decree before the trial court. Sending the applicants to civil
prison would be a serious threat to their social image and prestige. Therefore,
consideration of the final judgment and decree passed in the civil suit and the
first appeal is necessary.
14. In the case of Ram Nath Sao vs. Gobardhan Sao, reported in
(2002)3 SCC 195, the Apex Court has explained the the term "sufficient
cause" and held that acceptance of the explanation should be the rule and its
rejection should be the exception. The Court held as under:
"12. Thus it becomes plain that the expression “sufficient
cause” within the meaning of Section 5 of the Act or Order 22
Rule 9 of the Code or any other similar provision should receive a
liberal construction so as to advance substantial justice when no
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Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM

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negligence or inaction or want of bona fides is imputable to a

party. In a particular case whether explanation furnished would
constitute “sufficient cause” or not will be dependent upon facts of
each case. There cannot be a straitjacket formula for accepting or
rejecting explanation furnished for the delay caused in taking
steps. But one thing is clear that the courts should not proceed
with the tendency of finding fault with the cause shown and reject
the petition by a slipshod order in over-jubilation of disposal
drive. Acceptance of explanation furnished should be the rule and
refusal, an exception, more so when no negligence or inaction or
want of bona fides can be imputed to the defaulting party. On the
other hand, while considering the matter the courts should not lose
sight of the fact that by not taking steps within the time prescribed
a valuable right has accrued to the other party which should not be
lightly defeated by condoning delay in a routine-like manner.
However, by taking a pedantic and hypertechnical view of the
matter the explanation furnished should not be rejected when
stakes are high and/or arguable points of facts and law are
involved in the case, causing enormous loss and irreparable injury
to the party against whom the lis terminates, either by default or
inaction and defeating valuable right of such a party to have the
decision on merit. While considering the matter, courts have to
strike a balance between resultant effect of the order it is going to
pass upon the parties either way."
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Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM

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15. Further, in the judgment reported in the case of S. Ganesharaju

(Dead) through LRs. & Anr. Vs. Narasamma (Dead) through LRs. & Ors.,
reported in (2013)11 SCC 341, the Apex Court has held in paragraphs 12 to
14 as follows:
"12. The expression “sufficient cause” as appearing in
Section 5 of the Limitation Act, 1963, has to be given a liberal
construction so as to advance substantial justice. Unless the
respondents are able to show mala fides in not approaching the
court within the period of limitation, generally as a normal rule,
delay should be condoned. The trend of the courts while dealing
with the matter with regard to condonation of delay has tilted
more towards condoning delay and directing the parties to contest
the matter on merits, meaning thereby that such technicalities have
been given a go-by.
13. The rules of limitation are not meant to destroy or
foreclose the right of parties. They are meant to see that parties do
not resort to dilatory tactics but seek their remedy promptly.
14. We are aware of the fact that refusal to condone delay
would result in foreclosing the suitor from putting forth his cause.
There is no presumption that delay in approaching the court is
always deliberate. In fact, it is always just, fair and appropriate that
matters should be heard on merits rather than shutting the doors of
justice at the threshold. Since sufficient cause has not been
defined, thus, the courts are left to exercise a discretion to come to
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Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM

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the conclusion whether circumstances exist establishing sufficient

cause. The only guiding principle to be seen is whether a party has
acted with reasonable diligence and had not been negligent and
callous in the prosecution of the matter. In the instant case, we
find that the appellants have shown sufficient cause seeking
condonation of delay and the same has been explained
satisfactorily."
16. Apparently, there appears to be no malafide on the part of
applicants in not filing the appeal in time. Considering the aforesaid, this
Court is of the considered opinion that the appeal filed by the applicants
should be considered on merits. The order dated 02.06.2018, impugned in
this revision, is accordingly set aside. The application under Section 5 of the
Limitation Act filed by the applicants before the lower appellate court is
allowed. The delay in filing of the appeal is condoned. The matter is remitted
to the appellate court for consideration of the appeal on its merits.
(ASHISH SHROTI)
JUDGE
Anil*

Signature Not Verified
Signed by: ANIL KUMAR
CHAURASIYA
Signing time: 07-09-2026
06:59:50 PM