Ramkishan @ Kissu Yadav vs Dhaniram
2022 Latest Caselaw 9765 MP

                                                   1
                              IN THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                            ON THE 15th OF JULY, 2022

                                       SECOND APPEAL No. 1551 of 2021

                           Between:-
                           RAMKISHAN @ KISSU YADAV S/O SHRI
                           DHANIRAM YADAV, AGED ABOUT 48 YEARS,
                           OCCUPATION: DRIVER R/O VILLAGE GUDA
                           TEHSIL NOUGAON DISTT. CHHATARPUR M.P.
                           (MADHYA PRADESH)

                                                                        .....APPELLANT
                           (BY SHRI SHYAM YADAV, ADVOCATE)

                           AND

                      1.   DHANIRAM S/O BALRAM YADAV , AGED
                           ABOUT 70 YEARS, R/O VILLAGE GUDO TEHSIL
                           NAUGOAN DISTT. CHHATARPUR M.P. (MADHYA
                           PRADESH)

                      2.   RAJKUMAR S/O LATE RAMRATAN YADAV,
                           AGED ABOUT 26 YEARS, R/O VILLAGE GUDO
                           TEHSIL NAUGOAN DISTT. CHHATARPUR M.P.
                           (MADHYA PRADESH)

                      3.   KAPOOR SINGH S/O LATE RAMRATAN YADAV,
                           AGED ABOUT 24 YEARS, R/O VILLAGE GUDO
                           TEHSIL NAUGOAN DISTT. CHHATARPUR M.P.
                           (MADHYA PRADESH)

                      4.   KALKAPRASAD S/O LATE RAMRATAN YADAV,
                           AGED ABOUT 22 YEARS, R/O VILLAGE GUDO
                           TEHSIL NAUGOAN DISTT. CHHATARPUR M.P.
                           (MADHYA PRADESH)

                      5.   PHOOL SINGH S/O LATE RAMRATAN YADAV,
                           AGED ABOUT 20 YEARS, R/O VILLAGE GUDO
                           TEHSIL NAUGOAN DISTT. CHHATARPUR M.P.
                           (MADHYA PRADESH)

Signature Not
 SAN
Verified              6.   SMT.AJABKUNWAR W/O LATE RAMRATAN
                           YADAV, AGED ABOUT 45 YEARS, R/O VILLAGE
Digitally signed by        GUDO TEHSIL NAUGOAN DISTT. CHHATARPUR
RASHMI RONALD
VICTOR                     M.P. (MADHYA PRADESH)
Date: 2022.07.15
17:24:44 IST
                            2

7.    STATE OF MADHYA PRADESH         THROUGH
      C O LLEC TO R DIST.CHHATARPUR    (MADHYA
      PRADESH)

8.    SMT.ARCHANA W/O VIRENDRA CHATURVEDI,
      AGED ABOUT 26 YEARS, KETHORA TEHSIL
      NAUGAON (MADHYA PRADESH)

9.    SMT.HIRABAI W/O PAPPU AHIRWAR, AGED
      ABOUT 23 YEARS, VILLAGE BHADRA TEHSIL
      MAURANIPUR (UTTAR PRADESH)

10.   SMT.RAMRATI AHIRWAR W/O JAGDEESH
      PRASAD, AGED ABOUT 30 YEARS, VILLAGE
      GOUNA PS PATELA (MADHYA PRADESH)

11.   SMT.MANNU DEVI SAHU W/O MOOLCHAND
      SAHU, AGED ABOUT 35 YEARS, KASHIPURA
      TEHSIL KULPAHAD (UTTAR PRADESH)

12.   SMT.SAROJ W/O AMAR SINGH KUSHWAHA,
      AGED ABOUT 26 YEARS, LAHCHURA ROAD
      HARPALPUR TEHSIL NAUGAON (MADHYA
      PRADESH)

13.   SMT.RAMBAI W/O DHARMENDRA SINGH
      KUSHWAHA,  AGED   ABOUT   23 YEARS,
      LAHCHURA   ROAD   HARPALPUR  TEHSIL
      NAUGAON (MADHYA PRADESH)

14.   SMT.USHA DEXIT W/O SANTOSH DEXIT, AGED
      ABOUT 25 YEARS, WARD NO. 1 HARPALPUR
      TEHSIL NAUGAON (MADHYA PRADESH)

15.   SMT.UMADEVI W/O GANPAT KUSHWAHA, AGED
      ABOUT    32   YEARS, LAHCHURA   ROAD
      HARPALPUR TEHSIL NAUGAON (MADHYA
      PRADESH)

16.   SMT.MAYADEVI   W/O    BRIJGOPAL   RAI
      (KHANGAR) KULWA TEHSIL PANNA (MADHYA
      PRADESH)

17.   SMT.RAMDEVI SANDELYA W/O BHAGWAT
      NARAYAN SANDELYA, AGED ABOUT 62 YEARS,
      SARSED PS HARPALPUR (MADHYA PRADESH)

18.   SMT.TARABAI W/O GOKULPRASAD KHANGAR,
      AGED    ABOUT    36  YEARS, HARPALPUR
      DISTT.CHHATARPUR (MADHYA PRADESH)
                                       3

                                                                 .....RESPONDENTS
            (BY SHRI SREESH AGRAWAL, ADVOCATE FOR RESPONDENTS 2-
            6, 8, 9, 16 & 18)
            (BY SHRI R. MATHAI, PANEL LAWYER FOR RESPONDENT
            7/STATE)
            (BY SHRI DILIP PANDEY, ADVOCATE FOR RESPONDENT 11, 14 &
            17)
            (BY SHRI S.P. SINGH, ADVOCATE FOR RESPONDENT 15)

          Th is appeal coming on for hearing this day, the court passed the
following:
                                     JUDGMENT

Service report shows that respondent-1/Dhaniram has died but the plaintiff/appellant is son of Dhaniram, therefore, there is no abatement of the appeal and if there are other legal representatives of respondent 1-Dhaniram, the appellant is free to file application for substitution before the First Appellate Court.

2. This appeal was admitted on 03/01/2022 on the following substantial questions of law:

"(1) Whether the lower appellate Court has committed an error of law while deciding the question of limitation by treating the appeal to have been presented on the date of deposit of Court fee instead of the date of its presentation?"

3. With the consent of parties, the appeal is heard finally at motion stage itself.

4. From bare perusal of the record, it is clear that judgment and decree was passed by Civil Judge Class-I, Nougaon District Chhatarpur on 30/11/2015 and even as per the impugned order dated 05/10/2021 dismissing the appeal as barred by limitation, it is clear that the first appeal was filed on 04/01/2016.

5. Learned counsel for the appellant submits that although the first appeal

was filed without payment of Court fees but it is apparent from the order that the Court also did not grant any time to pay Court fees. It is well settled that if the requisite Court fees has not been paid by the plaintiff or appellant, it is bounden duty of the concerning Court to grant reasonable time to make payment of the Court fees and without granting time, the appeal or suit cannot be dismissed. Apparently, the Court fees was paid on 19/01/2016. Although, there was no application for extension of time in making payment of Court fees but the learned Court, exercising powers under Section 149 of CPC, even without there being any application, could extend the time to deposit the Court fees. It appears from the record that the Court has taken harsh view, which was not permissible in the present case.

6. Accordingly, the substantial question of law framed by this Court is decided in favour of the appellant and against the respondents.

7. Resultantly, the second appeal is allowed with the further direction to learned First Appellate Court to restore the appeal on record and to decide the same on merits ignoring the question of delay.

8. As parties are represented here, therefore, they are directed to remain present before the Court on 22/08/2022.

9. Registry is directed to send the record back to the concerning Court.

(DWARKA DHISH BANSAL) JUDGE RS