Madhya Pradesh High Court
Smt.Parwati Devi vs Rajmani on 20 December, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 20 th OF DECEMBER, 2022
MISC. APPEAL No. 2789 of 2005
BETWEEN:-
SMT.PARWATI DEVIW/O VISHNUBAHADUR SINGH
CHAUHAN, AGED ABOUT 55 YEARS, VILL.KHOCHIPUR,
TAHsil SINHAWAL, DISTT. SIDHI, BLOCK OFFICE
COLONY SIDHI (MADHYA PRADESH)
.....APPELLANT
(NONE PRESENT)
AND
1. RAJMANI S/O BENIMADHAV, AGED ABOUT 58
YEAR S, VILLAGE KOTERKALA, H.NO.3, TAHSIL
GOPADBANAS, DISTT. SIDHI (MADHYA PRADESH)
2(a). SUBHAUA WD/O LATE SHRI KAUSHAL
PRASADWANI, AGED ABOUT 40 YEARS,
VILL.KOTERKALA,P.S.SIDHI TAHSIL
GOPADBANAS, DISTT. SIDHI (MADHYA PRADESH)
2(b). DIWAKAR PRASAD S/O LATE SHRI KAUSHAL
PRASAD, AGED ABOUT 28 YEARS,
VILL.KOTERKALA,P.S.SIDHI
TAH.GOPADBANAS,DISTT.SIDHI (MADHYA
PRADESH)
2(c). GULAB PRASAD S/O LATE SHRI KAUSHAL
PRASAD, AGED ABOUT 24 YEARS, VILLAGE
KOTERKALA, P.S.SIDHI TAHSIL GOPADBANAS,
DISTT.SIDHI (MADHYA PRADESH)
2(d). MUNNA S/O LATE SHRI KAUSHAL PRASAD, AGED
ABOUT 18 YEARS, VILL. KOTERKALA, P.S.SIDHI
TAHSIL GOPADBANAS, DISTT.SIDHI (MADHYA
PRADESH)
Signature Not Verified
SAN
2(e). DEVKILATE SHRI KAUSHAL PRASAD GUPTA,
AGED ABOUT 20 YEARS, VILLAGE IUCHWAHI
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.20 19:25:26 IST
TAHSIL SINHAWAL, DIST. SIDHI (MADHYA
2
PRADESH)
3. SHESHMANI S/O BENIMADHAV, AGED ABOUT 26
YE A R S , OCCUPATION: AGRICULTURE/SERVICE
SUB ENGINEER IRRIGATION DEPARTMENT,
MAHAN PROJECT, SIDHI, M.P. AT PRESENT AT
KOTERKALA WARD NO. 4, SIDHI (MADHYA
PRADESH)
4. DURYODHAN S/O HARPRASAD GUPTA, AGED
ABOUT 28 YEARS, VILL. KOTERKA TAH.
GOPADBANAS, DIST. SIDHI, MP (MADHYA
PRADESH)
5. SAMAYALAL S/O HARPRASAD GUPTA, AGED
ABOUT 25 YEARS, VILL. KOTERKA TAH.
GOPADBANAS, DIST. SIDHI, MP (MADHYA
PRADESH)
6. TULSIDAS S/O HARPRASAD GUPTA, AGED ABOUT
21 YEARS, VILL. KOTERKA TAH. GOPADBANAS,
DIST. SIDHI, MP (MADHYA PRADESH)
7. SMT. SOMWATI, DAUGHTER OF PRABHUNATH
GUPTA, AGED ABOUT 30 YEARS, RESIDENT OF
VILLAGE SARAKHNIHAN, TAH. GOPAD BANAS
DIST. SIDHI (MADHYA PRADESH)
8. AYODHYA PRASADSARYE WANI, AGED ABOUT 50
YEARS, RESIDENT OF KOTERKALA, TAHSIL
GOPADBANAS, DISTRICT SIDHI (MADHYA
PRADESH)
9. RAMMANI S/O SARYA WANI, AGED ABOUT 48
YEARS, RESIDENT OF KOTERKALA TAH. GOPAD
BANAS, DISTRICT SIDHI, MP (MADHYA PRADESH)
10. RAMPRASAD @ CHHOTA S/O SARYE WANI, AGED
ABOUT 46 YEARS, RESIDENT OF KOTERKALA
TAH. GOPAD BANAS, SIDHI, MP (MADHYA
PRADESH)
11. SMT. SUGNISHRI SEVAK WANI, AGED ABOUT 52
YEARS, RESIDENT OF VILL. KUCHWAHI DISTT.
SIDHI (MADHYA PRADESH)
Signature Not Verified
SAN
12. SMT. NEVJUA W/O SHRI VINDHYAWASINI, AGED
ABOUT 44 YEARS, RESIDENT OF KOTERKALA,
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.20 19:25:26 IST DISTRICT SIDHI, AT PRESENT BARAMBABA P.S.
SIDHI, DIST. SIDHI (MADHYA PRADESH)
3
.....RESPONDENTS
(BY SHRI BRIJENDRA KUMAR VAISHYA - ADVOCATE)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This Miscellaneous Appeal under Order 43 Rule 1(d) of the Code of
Civil Procedure, 1908, is filed by the defendant No.2, being aggrieved of order
dated 08.07.2005, passed by learned Ist Addl. District Judge, Sidhi (M.P.), in
MCC No.23/2000, whereby an application under Order 9 Rule 13 CPC read
with Section 5 of the Limitation Act, is rejected, in respect of judgment and
decree dated 17.12.1998.
2. Shri Brijendra Kumar Vaishya, in his turn, submits that ex parte
proceedings were carried out on 24.11.1998, judgment and decree was passed
on 07.12.1998, an application for setting aside ex-parte judgment and decree
was filed on 16.02.1999, whereas, Shri Ashok Kumar Pandey, appellant's
witness in his cross-examination on 15.10.2004, in para 7 admitted that he had
gathered knowledge of ex parte proceedings on 24.11.1998 itself.
3. Thus, it is evident that limitation is to be construed from the date of
knowledge. When there is admission of Ashok Kumar Pandey that he had
gained knowledge of ex parte proceedings on 24.11.1998, then there was no
occasion for not filing an application within thirty days, seeking setting aside ex
parte proceedings. Thus, for the failure of the party i.e. defendant No.2 in not
moving an appropriate application within time, though knowledge was gathered
by the counsel Shri Ashok Kumar Pandey on 24.11.1998 itself and by the party
Signature Not Verified
SAN
as is deposed by Shri Manoj Singh S/o Parwati Devi in para 2 of his
examination in chief affidavit that his mother had gathered knowledge about ex
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.20 19:25:26 IST
parte proceedings on 30.12.1998, she had applied for certified copies of the
orders which were received on 04.01.1999, there is no justification for not filing
an application within thirty days of gathering knowledge or on receiving certified
copies of orders till 16.02.1999.
4. When these facts are examined and impugned order is perused, then no
illegality is said to have been committed by the learned First Addl. District
Judge, Sidhi, calling for interference.
5. Appeal fails and is dismissed, as no sufficient cause was made out seeking
condonation of delay.
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.20 19:25:26 IST
