Sukhdas vs Mus Kattubai
2022 Latest Caselaw 7682 MP

                                                           1
                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                     SA No. 559 of 2017
                                               (SUKHDAS Vs MUS KATTUBAI AND OTHERS)

                      Dated : 13-06-2022
                               Shri Bhoop Singh Patel, learned counsel for the appellant.

                               Shri Satish Shrivastava, learned counsel for respondent No.3 to 9.

Shri Divesh Jain, learned Government Advocate for respondent No.10- State.

Heard on I.A.No.6708/2017, which is an application for condonation of delay in filing the second appeal.

Learned counsel for the appellant submits that the appellant is rustic villager and illiterate person and he engaged Shri Prem Lal Kosta, Advocate for filing the second appeal, who assured him to file the same but upon reaching Jabalpur on 19.2.2017 he came to know that counsel Shri Prem Lal Kosta died on 9.1.2017 without filing the second appeal, then again he applied for certified copy of the impugned judgment and decree and engaged new counsel for filing the second appeal, accordingly present appeal has been filed. It addition to the aforesaid, counsel further submits that appellant was proceeded ex-parte before the lower appellate Court and was not served with the notice of final hearing of

Civil Appeal. Accordingly, he prays for allowing the application for condonation of delay.

Learned counsel for the respondent No.3 to 9 has filed reply to application denying the allegation/ contention made in the same and submits that the present appeal has been filed with the delay of 2 years and 9 months

Signature SAN Not without mentioning any justifiable reasons and no sufficient cause has been Verified

Digitally signed by shown in the application. He vehemently opposed the application with a prayer KRISHAN KUMAR CHOUKSEY Date: 2022.06.14 13:30:22 IST

to dismiss the same.

Heard the learned counsel for the parties.

Although, no contention with regard to non-service of notice has been made in the application, but bare perusal of the order sheets of the lower appellate Court show that notice of application under Section 5 of Limitation Act as well as memo of appeal was directed to be issued vide order dated 22.2.2011 and upon service present appellant did not appear and ultimately lower appellate Court vide order dated 21.7.2011 allowed the application filed under Section 5 of Limitation Act and admitted the appeal for final hearing. Later order-sheets show that no notice of final hearing of Civil Appeal was

issued to the present appellant and lower appellate court proceeded ex-parte and heard final argument in absence of present appellant-Sukhdas.

Shri Satish Shrivastava, learned counsel for the respondent after perusing the original record conceded that after admitting the appeal for final hearing no notice was issued to the present appellant as required under Order 41 Rule 12 and 14 of CPC.

In view of aforesaid, undisputed factual position, this Court is inclined to allow the application under Section 5 of Limitation Act. Accordingly, I.A.No.6708/2017 is allowed and delay in filing the appeal is hereby condoned.

List the case for admission and consideration of pending I.A. in the next week.

(DWARKA DHISH BANSAL) JUDGE

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