Madhya Pradesh High Court
Narayan Prasad vs Smt. Sugrabi (Dead) Thr. Lrs. ... on 4 July, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
SA No. 1949 of 2019
(NARAYAN PRASAD AND OTHERS Vs SMT. SUGRABI (DEAD) THR. LRS. NOORJAHAN AND OTHERS)
Dated : 04-07-2022
Shri P.C. Paliwal, Advocate for the appellants.
Shri N.S. Ruprah, Advocate for the respondents No.1, 1-A to A-D and 2
to 5.
Shri Devendra Shukla, P.L. for the respondent No.6/State.
Heard on I.A. No.8535 of 2019, which is an application under Section 5
of the Limitation Act for condonation of delay in filing of the second appeal.
Learned counsel for the appellants submits that the judgment and decree
in question was passed on 17.07.2018 by the first appellate Court and the
counsel Mr. S.K. Dwivedi, appearing before the first appellate Court and trial
Court applied and received the certified copy, but the same was misplaced,
therefore, as per the assurance given by counsel - Mr. S.K. Dwivedi, the second
appeal could not be filed before the Hon'ble High Court. When in the IInd week
of June 2019, respondents No.1, 1-A to A-D and 2 to 5 had threatened the
appellants to remove the possession from the suit land, they got applied for
certified copy on 19.06.2019 and after obtaining the same on 24.06.2019
engaged the counsel at Jabalpur, who filed the appeal on 11.07.2019. He
submits that the appellants are poor persons and were dependent upon the
advise of the counsel appearing before the Courts below and they are in
possession of the suit property and if their appeal is not treated within limitation,
they will suffer. There was no negligence on the part of the appellants in not
Signature
SAN Not filing the appeal within time and the delay occurred in filing of the appeal is
Verified
Digitally signed by based on their bonafides and same deserves to be condoned. The application is
PRASHANT
BAGJILEWALE
Date: 2022.07.05
18:15:05 IST
supported by affidavit of appellant No.1 Naryan Prasad Chourasia.
Learned counsel for the respondents Shri Ruprah, submits that the
application under Section 5 of the Limitation Act is vague and even no name of
the counsel appearing before the Court below is mentioned in the application.
Further, there is no explanation of delay with effect from 17.07.2018 to
19.06.2019 and he submits that just to get condoned the delay, the false
averments have been made in the application. Accordingly, he prays for
dismissal of I.A. No.8535 of 2019.
This Court issued the notice of I.A. No.8535 of 2019 vide order dated
31.07.2019 and again on 29.04.2022 and 6.5.2022, time was granted to the
counsel for the respondents to file the reply of I.A but no reply of this I.A.
under Section 5 of the Limitation has been filed.
Upon confronting the aforesaid order sheets, learned counsel for the
respondents submits that he does not want to file reply and he is opposing the
application on the basis of material, that is available on record.
As the application is supported by affidavit and the Office has reported
the delay of 263 days and the application is supported by affidavit and there is
no counter to the application, therefore, there is no option but to accept the
explanation offered by the appellants to be true and correct.
Accordingly I.A. No.8535 of 2019, application under Section 5 of the
Limitation Act is allowed and delay in filing the appeal is condoned.
List this appeal for admission in the week commencing from 18.07.2022.
The application I.A. No.8534 of 2019 for temporary injunction and I.A
No.844 of 2022, for vacating stay shall be considered at the time of admission.
Learned counsel for both the parties, submit that they will advance
arguments and will not seek any adjournment on the next date.
(DWARKA DHISH BANSAL)
JUDGE
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