Madhya Pradesh High Court
Vijay Singh vs Smt.Gyaso on 7 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:16940
1 SA-147-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7 th OF AUGUST, 2025
SECOND APPEAL No. 147 of 2011
VIJAY SINGH
Versus
SMT.GYASO AND OTHERS
Appearance:
Shri Jitendra Kumar Sharma Senior Advocate with Shri Nikhil Bhatele
- Advocate for the appellant.
Shri Shohit Mishra - Government Advocate for the State.
Shri R.S. Chauhan proxy counsel on behalf of Shri Nakul Khedkar -
Advocate for the respondent No.1.
ORDER
This second appeal under Section 100 of CPC has been filed against
the order dated 30/11/2010 passed by Additional District Judge, Sabalgarh,
District Morena in MJC No.27/2010 by which application filed under
Section 5 of Limitation Act for condonation of delay in filing the civil appeal
has been rejected and as a consequence thereof, the appeal was also
dismissed as barred by time.
2. The facts necessary for disposal of present appeal in short are that
respondent No.1/plaintiff had filed a suit for declaration of title as well as for
declaration of sale-deed and the orders passed by Revenue Court as null and
void as well as also for mesne profit and permanent injunction. The appellant
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appeared in the said appeal, filed his written statement and also participated
in the suit proceedings. Ultimately, by judgment and decree dated
23/07/2001 the trial Court decreed the suit.
3. Thereafter, the appellant filed a regular civil appeal under Section 96
of CPC on 03/02/2010 i.e. after 8 years and 7 months of the judgment and
decree which was passed against him. He also filed an application under
Section 5 of Limitation Act pleading interalia that after his evidence was
over, he was informed by his counsel that now, his presence is not required,
and he will be informed as and when required. However, it was alleged that
his counsel did not give any information about the judgment and decree dated
23/07/2001. Later on, when the plaintiff tried to obtain an information from
his counsel, then he was informed that he has won, and he may cultivate the
land without any difficulty. Only after the execution proceedings were
initiated by plaintiff, defendant came to know about the decree passed
against him, therefore, he preferred an appeal under Section 96 of CPC on
03/02/2010 alongwith an application under Section 5 of Limitation
Act. Appellate Court by impugned order dated 30/11/2010 rejected the
application filed under Section 5 of Limitation Act and also dismissed the
appeal as barred by time.
4. Challenging the order passed by Court below, it is submitted by
counsel for appellant that appellant had made out a sufficient cause for
condonation of delay. It is further submitted that the prayer for condonation
of delay should be considered liberally, and every attempt should be made to
decide the case on merits, and thus it is submitted that Appellate Court
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should have condoned the delay and proposed the following substantial
question of law:-
“1. Whether the Court below has committed error of law in
rejecting the application under section 5 of the Limitation Act
preferred by the appellant whereas it was the case of the appellant
the decision of the suit was came in to his knowledge only on
08.01.2010.
2. Whether the court below has committed jurisdictional error in
not exercising the powers vested in it by not condoning the delay
in filing appeal.
3. Whether the Court below has committed jurisdictional error in
not interfering in the judgment and decree passed by the trial court
?
4. Whether the findings recorded in the Court below are totally
perverse and no findings in the eye of law.
5. That any other question of law deemed fit in the circumstances
of the case may kindly be framed by this Hon’ble Court in the
interest of justice.”
5. Heard the learned counsel for the parties.
6. The moot question for consideration is as to whether the appellant
pointed out some sufficient cause for condonation of delay of 8 years and 7
months in filing the regular civil appeal or not?
7. As already pointed out, it was claimed by appellant that he was
informed by his counsel, that he should not appear, and he will inform as and
when he was required. Thus, appellant tried to put entire blame on the
shoulders of his counsel, and it was his case that his counsel did not inform
him about the outcome of civil suit.
8. Now, the only question for consideration is as to whether the litigant
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can blindly rely upon the instructions of his counsel or he himself has to
keep track of his case.
9. Delhi High Court in the case of Jan Chetna Jagriti Avom
Shaikshanik Vikas Manch and Others Vs. Anand Raj Jhawar Sole Proprietor
of M/S RR Agrotech reported in 2025 SCC OnLine Del 878 has held as
under:-
5. As mentioned above, the only explanation advanced by the
appellants with regard to the colossal delay of 565 days in filing
the appeal is that their erstwhile counsel kept them in dark. This
explanation needs to be tested on the anvil of the judicially
sanctified parameters under Section 5 of the Limitation Act.
5.1 As regards Section 5 of the Limitation Act, the undisputed
propositions of law as culled out of various judicial precedents are
as follows. Where an applicant is able to satisfy the court that he
was precluded from filing the appeal or application other than an
application under any of the provisions of Order XXI CPC from
circumstances beyond his control, the court has discretion to
condone the delay in filing the appeal etc. Like any other
discretion, the discretion under Section 5 of the Act also must be
exercised judiciously, keeping in mind the principles evolved
across time. One of those principles evolved across time is that the
sufficiency of cause set up by the applicant under Section 5 of the
Act must be construed liberally in favour of the applicant. Unless
no explanation for delay is submitted or the explanation furnished
is wholly unacceptable, the court must liberally condone the
delay, if third party rights had not become embedded during the
interregnum. It is not the length of delay but the sufficiency of
cause which has to be examined by the court, in the sense that if
there is sufficient cause, delay of long period can be condoned but
if it is otherwise, delay of even a few days cannot be condoned.
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The purpose of construing the expression “sufficient cause”
liberally is to ensure substantial justice when no negligence or
inaction or want of bona fides is attributable to the applicant.
5.2 No doubt, for the fault of counsel, the litigant should not be
made to suffer. But that cannot be a blanket rule. Each case has to
be examined on its peculiar factual matrix. The protection of the
said rule, which can in appropriate cases be extended to an
illiterate lay person, cannot be extended to an educated litigant or
a corporate entity or the government bodies. Merely by engaging a
counsel, the litigant cannot claim to be not under a duty to keep
track of the case. Most importantly, where the applicant attributing
such delay to the professional misconduct of the counsel opts not
to take any action against the counsel, his explanation cannot be
believed. Condoning delay in such circumstances, believing the
bald allegations of the applicant would be tantamount to
condemning the erstwhile counsel without hearing him and that
too on judicial record.
5.3 In the case of Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC
361, the Hon’ble Supreme Court of India observed thus:
“7. In construing Section 5(of the Limitation Act), it is relevant to
bear in mind two important considerations. The first consideration
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 the 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 upon the
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should be exercised to advance substantial justice.”
(emphasis supplied)
5.4 In the case of Finolux Auto Pvt. Ltd. v. Finolex Cables Ltd.,
(2007) 136 DLT 585 (DB), a Division Bench of this Court held
thus:
“6. In this regard, we may refer to a decision of the
Supreme Court in P.K. Ramachandran v. State of
Kerala, (1997) 4 CLT 95 (SC). In the said decision, the
Supreme Court has held that unless and until a
reasonable or satisfactory explanation is given, the
inordinate delay should not be condoned. In para 6 of
the judgment, the Supreme Court has laid down in the
following manner:
“Law of Limitation may harshly affect a particular party
but it has to be applied with all its rigour when the
statute so prescribes and the Courts have no power to
extend the period of limitation on equitable grounds.
The discretion exercised by the High Court was, thus,
neither proper nor judicious. The order condoning the
delay cannot be sustained. This appeal, therefore,
succeeds and the impugned order is set aside.
Consequently, the application for condonation of delay
filed in the High Court would stand rejected and
the Miscellaneous First Appeal shall stand dismissed as
barred by time. No costs.”
(emphasis supplied)
5.5 In the case of Pundlilk Jalam Patil (dead) by LRs v. Executive
Engineer Jalgaon Medium Project, (2008) 17 SCC 448, the
Hon’ble Supreme Court of India held that basically the laws of
limitation are founded on public policy and the courts have
expressed atleast three different reasons supporting the existence
of statutes of limitation, namely (i) that long dormant claims have
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more of cruelty than justice in them, (ii) that a defendant might
have lost the evidence to dispute the stated claim, and (iii) that
persons with good causes of action should pursue them with
reasonable diligence. It was observed that the statutes of limitation
are often called as statutes of peace insofar as an unlimited and
perpetual threat of limitation creates insecurity and uncertainty
which are essential for public order.
5.6 In the case of Lanka Venkateshwarlu v. State of Andhra
Pradesh, (2011) 4 SCC 363, the Hon’ble Supreme Court of India
observed thus:
“19. We have considered the submissions made by the
learned counsel. At the outset, it needs to be stated that
generally speaking, the courts in this country including
this court adopt a liberal approach in considering the
application for condonation of delay on the ground of
sufficient cause under Section 5 of the Limitation Act”.
The concepts of “liberal approach” and “reasonableness” in the
exercise of discretion by the courts in condoning delay were
considered by the Hon’ble Supreme Court of India in the case of
Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685, holding thus:
“25. We may state that even if the term “sufficient
cause” has to receive liberal construction, it must
squarely fall within the concept of reasonable time and
proper conduct of the party concerned. The purpose of
introducing liberal construction is normally to introduce
the concept of “reasonableness” as it is understood in its
general connotation.
26. The law of limitation is a substantive law and has
definite consequences on the rights and obligations of
party to arise. These principles should be adhered to and
applied appropriately depending upon the facts and
circumstances of a given case. Once a valuable right has
accrued in favour of one party as a result of failure of
the other party to explain the delay by showingSignature Not Verified
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sufficient cause and its own conduct, it will be
unreasonable to take away that right on the mere asking
of the applicant, particularly when the delay is directly a
result of negligence, default or inaction of that party.
Justice must be done to both parties equally. Then alone
the ends of justice can be achieved. If a party has been
thoroughly negligent in implementing its rights and
remedies, it will be equally unfair to deprive the other
party of a valuable right that has accrued to it in law as
a result of his acting vigilantly.
27. ….
28. …. The concepts such as “liberal approach”,
“justice oriented approach” and “substantial justice”
cannot be employed to jettison the substantial law of
limitation. Especially in cases where the court
concludes that there is no justification of the delay….”
(emphasis supplied)
5.7 In the expressions of this Court in the case of Shubhra Chit
Fund Pvt. Ltd. v. Sudhir Kumar, (2004) 112 DLT 609, too much
latitude and leniency will make provisions of the Limitation Act
otiose, which approach must be eschewed by courts.
5.8 In the case of Pathapati Subba Reddy (died) by LRs v. The
Special Deputy Collector (LA), 2024 SCC OnLine SC 513 the
Hon’ble Supreme Court recapitulated the scope of Section 5
Limitation Act and held thus:
“26. On a harmonious consideration of the provisions of
the law, as aforesaid, and the law laid down by this
Court, it is evident that:
(i) Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting the
right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or
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to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be
construed in a strict sense whereas Section 5 has to be
construed liberally;
(iv) In order to advance substantial justice, though
liberal approach, justice-oriented approach or cause of
substantial justice may be kept in mind but the same
cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary in
nature and may not be exercised even if sufficient cause
is established for various factors such as, where there is
inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also entitled to
the same benefit if the court is not satisfied with the
cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered
in condoning the delay; and
(viii) Delay condonation application has to be decided
on the parameters laid down for condoning the delay
and condoning the delay for the reason that
the conditions have been imposed, tantamounts to
disregarding the statutory provision”.
5.9 So far as the issue regarding professional misconduct of the
counsel is concerned, the Hon’ble Supreme Court in the case of
Salil Dutta v. T.M. & M.C. Private Ltd., (1993) 2 SCC 185 held
thus:
“8. The advocate is the agent of the party. His acts and
statements, made within the limits of authority given toSignature Not Verified
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him, are the acts and statements of the principal i.e. the
party who engaged him. It is true that in certain
situations, the court may, in the interest of justice, set
aside a dismissal order or an ex parte decree
notwithstanding the negligence and/or misdemeanour of
the advocate where it finds that the client was an
innocent litigant but there is no such absolute rule that a
party can disown its advocate at any time and seek
relief. No such absolute immunity can be recognised.
Such an absolute rule would make the working of the
system extremely difficult. The observations made in
Rafiq [(1981) 2 SCC 788 : AIR 1981 SC 1400] must be
understood in the facts and circumstances of that case
and cannot be understood as an absolute proposition. As
we have mentioned hereinabove, this was an on-going
suit posted for final hearing after a lapse of seven years
of its institution. It was not a second appeal filed by a
villager residing away from the city, where the court is
located. The defendant is also not a rustic ignorant
villager but a private limited company with its
headoffice at Calcutta itself and managed by educated
businessmen who know where their interest lies. It is
evident that when their applications were not disposed
of before taking up the suit for final hearing they felt
piqued and refused to appear before the court. Maybe, it
was part of their delaying tactics as alleged by the
plaintiff. May be not. But one thing is clear — they
chose to non-cooperate with the court. Having adopted
such a stand towards the court, the defendant has no
right to ask its indulgence. Putting the entire blame
upon the advocate and trying to make it out as if they
were totally unaware of the nature or significance of the
proceedings is a theory which cannot be accepted and
ought not to have been accepted”.
(emphasis supplied)
5.10 In the case of Moddus Media Private Ltd. v. Scone
Exhibition Pvt. Ltd., 2017 SCC OnLine Del 8491, this Court
observed thus:
“13. The litigant owes a duty to be vigilant of his rights
and is also expected to be equally vigilant about the
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him or initiated at his instance. The litigant cannot be
permitted to cast the entire blame on the Advocate. It
appears that the blame is being attributed on the
Advocate with a view to get the delay condoned and
avoid the decree. After filing the civil suit or written
statement, the litigant cannot go off to sleep and wake
up from a deep slumber after passing a long time as if
the court is storage of the suits filed by such negligent
litigants. Putting the entire blame upon the advocate and
trying to make it out as if they were totally unaware of
the nature or significance of the proceedings is a theory
put forth by the appellant/applicant/defendant company,
which cannot be accepted and ought not to have been
accepted. The appellant is not a simple or rustic illiterate
person but a Private Limited Company managed by
educated businessmen, who know very well where their
interest lies. The litigant is to be vigilant and pursue his
case diligently on all the hearings. If the litigant does
not appear in the court and leaves the case at the mercy
of his counsel without caring as to what different
frivolous pleas/defences being taken by his counsel for
adjournments is bound to suffer. If the litigant does not
turn up to obtain the copies of judgment and orders of
the court so as to find out what orders are passed by the
court is liable to bear the consequences”.
(emphasis supplied)
5.11 Most recently on 21.11.2024, in the case of Rajneesh Kumar
v. Ved Prakash, 2024 SCC OnLine SC 3380, the Hon’ble Supreme
Court dealt with the situation where the applicant coming under
Section 5 of the Act attributed the delay in filing the appeal to his
erstwhile counsel, and observed thus:
“10. It appears that the entire blame has been thrown on
the head of the advocate who was appearing for the
petitioners in the trial court. We have noticed over a
period of time a tendency on the part of the litigants to
blame their lawyers of negligence and carelessness in
attending the proceedings before the court. Even if we
assume for a moment that the concerned lawyer was
careless or negligent, this, by itself, cannot be a ground
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owes a duty to be vigilant of his own rights and is
expected to be equally vigilant about the judicial
proceedings pending in the court initiated at his
instance. The litigant, therefore, should not be permitted
to throw the entire blame on the head of the advocate
and thereby disown him at any time and seek relief”.
(emphasis supplied)
10. This Court in the case of Lokpal Singh and Another Vs. Matre and
Others reported in 2019 (3) MPLJ 330 has held that being plaintiffs, it was
the duty of appellants to keep a track of their civil suit and in view of the fact
that nowadays everybody is having mobile phones and they have full
technical facilities to contact their counsel even on mobile, and having failed
to do so, it was held that the appellants have failed to make out any good
reason before the appellate Court for condonation of delay.
11. Therefore, it is the duty of a litigant to keep track of his own case,
and he cannot shift entire burden on to the shoulders of his counsel. Had it
been a case that on first occasion, some incorrect information was passed on
by his counsel to appellant but thereafter, within reasonable time appellant
had inquired from the Court, then this Court can condone the delay of few
days. However, in the present case, the delay is of 8 years and 7 months. By
no stretch of imagination, it can be said that the appellant was under a false
impression that his suit was pending.
12. In the application, it was also mentioned that later on he was
informed by his counsel that he has won and, therefore, he should cultivate
the land without any obstruction. The aforesaid stand taken by counsel for
appellant cannot be accepted for the reason that a decree for permanent
injunction was also passed against him. Why the plaintiff, who has won the
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suit, would allow the defendant to cultivate the land for years
together? Furthermore, when such misleading information was given by his
counsel has also not been clarified in the application. Even assuming that the
appellant was falsely informed by his counsel that he has won, still least
which was expected from the appellant was to obtain a copy of judgement
and decree so that he can protect his interest in future. It is not the case of
appellant that even after getting false information that he has won, he ever
tried to obtain the Certified Copy of the judgement and decree.
13. Under these circumstances, this court is of considered opinion that
grounds, which were raised by appellant in application filed under Section 5
of Limitation Act, were frivolous and after thought. Accordingly, it is held
that Appellate Court did not commit any mistake by rejecting the application
filed under Section 5 of Limitation Act and dismissing the appeal as barred
by time.
14. As no substantial question of law arises in the present appeal,
accordingly, the order dated 30/11/2010 passed by Additional District Judge,
Sabalgarh, District Morena in MJC No.27/2010 is hereby affirmed.
15. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
PjS/-
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