Madhya Pradesh High Court
Ramgarib (Dead) Thr. Lrs Babulal ... vs Mathura Charmakar on 18 November, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 18th OF NOVEMBER, 2022
SECOND APPEAL No. 1162 of 2017
BETWEEN:-
1. RAMGARIB (DEAD) THR. LRS BABULAL
CHARMKAR S/O RAMGARIB R/O RAMNAI,
TEHSIL RAIPUR KARCHULIYAN, DIST. REWA
(MADHYA PRADESH)
2. CHHOTELAL S/O LATE RAMGARIB R/O
RAMNAI TEHSIL RAIPUR KARCHULIYAN,
REWA (MADHYA PRADESH)
3. RATIYA D/O LATE RAMGARIB R/O RAMNAI
TEHSIL RAIPUR KARCHULIYAN, REWA
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI R.P.MISHRA, ADVOCATE)
AND
1. MATHURA CHARMAKAR S/O JANGI
CHARMAKAR, AGED ABOUT 50 YEARS,
OCCUPATION: LABOUR R/O GRAM RAMNAI,
TEHSIL RAIPUR KARCHULIYAN DIST. REWA
(MADHYA PRADESH)
2. DADDU S/O SAMPATI CHARMKAR, AGED
ABOUT 30 YEARS, R/O GRAM RAMNAI TEHSIL
RAIPUR KARCHULIYAN, REWA (MADHYA
PRADESH)
3. BHOLA CHARMKAR S/O BACHCHU
CHARMKAR, AGED ABOUT 60 YEARS, R/O
GRAM RAMNAI TEHSIL RAIPUR
KARCHULIYAN, REWA (MADHYA PRADESH)
4. BADRI CHARMKAR S/O KASHI CHARMKAR,
AGED ABOUT 50 YEARS, R/O GRAM RAMNAI
TEHSIL RAIPUR KARCHULIYAN, REWA
(MADHYA PRADESH)
5. SMT. SAMNI CHARMKAR W/O KASHI
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 11/21/2022
5:18:04 PM
2
CHARMKAR, AGED ABOUT 70 YEARS, R/O
GRAM RAMNAI TEHSIL RAIPUR
KARCHULIYAN, REWA (MADHYA PRADESH)
6. VAISHAKHI W/O CHHOTTE SAKET, AGED
ABOUT 60 YEARS, R/O GRAM RAMNAI TEHSIL
RAIPUR KARCHULIYAN, REWA (MADHYA
PRADESH)
7. SAMPAT CHARMKAR S/O SHIVDAS
CHARMKAR, AGED ABOUT 50 YEARS, R/O
GRAM RAMNAI TEHSIL RAIPUR
KARCHULIYAN, REWA (MADHYA PRADESH)
8. KALU CHARMKAR S/O MATALBI, AGED ABOUT
70 YEARS, R/O GRAM RAMNAI TEHSIL RAIPUR
KARCHULIYAN, REWA (MADHYA PRADESH)
9. DASHMANIYA W/O KEMLA SAKET, AGED
ABOUT 60 YEARS, R/O GRAM RAMNAI TEHSIL
RAIPUR KARCHULIYAN, REWA (MADHYA
PRADESH)
10. SHANKAR PRASAD MISHRA S/O SHRI
RAMKUMAR MISHARA SAKIN KHEERA HOUSE
FOURT ROAD REWA TEHSIL HUZUR REWA
(MADHYA PRADESH)
11. THE STATE OF MADHYA PRADESH THR.
J I L A A D H YA K S H DISTT-REWA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI PRABHAKAR SINGH, ADVOCATE FOR RESPONDENTS
AND SHRI ANAND SHUKLA, PANEL LAWYER FOR RESPONDENT-
11)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Heard on I.A.No.13508/2017, an application under Section 5 of the
Limitation Act for condonation of delay in filing of the second appeal.
2. The Registry has reported this appeal to be barred by 1242 days.
3. Condonation has been sought on the ground that the appellants are
resident of remote village and they were informed about the judgement and
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 11/21/2022
5:18:04 PM
decree dated 25.01.2014 by local counsel with the further information that the
second appeal is required to be filed within 90 days and the counsel assured the
appellants that they are not required to go to Jabalpur for filing the appeal but he
himself shall file the appeal at Jabalpur. It is further contended in the application
that the local counsel of Rewa received requisite expenses within two months
from the judgment and decree and got signature on the Vakalatnama and
affidavit with the assurance that he will file the appeal in the High Court at
Jabalpur. Accordingly they were fully satisfied about filing of the second
appeal against the judgment and decree.
4. It is further contended in the application that wife of the appellant No.2-
chhotelal was suffering from Cancer for last four years, who has also died on
02.08.2017. When in the month of August, 2017 the respondents started raising
construction on the land of the appellants then they made complaint to the
Tahsildar, who issued order of stay but upon intimation given by the
respondents about dismissal of the civil suit, Tahsildar dismissed the
application filed by the appellants against which they have preferred appeal
before SDO who has also passed order of status-quo.
5. It is further contended that all the aforesaid was informed by the
appellants to the so called local counsel and sought information about the
second appeal filed before the High Court, then the counsel said that he has not
filed appeal before the High Court and upon making requests so many times by
the appellants, the counsel returned the file on 17.09.2017. As there was no
certified copy of the judgement and decree dated 25.01.2014 in the available
file, the appellants applied for certified copy on 18.09.2017 which was delivered
to them on 27.09.2017, thereupon they went to Jabalpur on 01.10.2017 and
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 11/21/2022
5:18:04 PM
handed over all the documents to the counsel at Jabalpur, who drafted/prepared
the second appeal and filed the same.
6. With the aforesaid contentions, it has been prayed in the application that
the delay occurred in filing of the second appeal is based on bonafides of the
appellants and deserves to be condoned.
7. Learned counsel for respondents 1 and 8 submits the learned Courts
below have dismissed the suit holding that the plaintiffs are not Bhoomiswami
of the land in question and the respondents are in possession of the land on the
basis of pattas granted by State Government. He further submits that no
sufficient ground for condonation of delay has been mentioned in the
application and even the name of advocate who was instructed to file appeal
before the High Court and who assured the appellants to file the same before
the High Court, has not been mentioned in the application and prays for
dismissal of the application.
8. Heard learned counsel for the parties and perused the record.
9. The impugned judgment and decree has been passed by III Additional
District Judge, Rewa on 25.01.2014 and according to the averments made in the
application, all the appellants were aware about the judgement and decree
because their local counsel informed them and they were also made aware that
the second appeal is required to be filed within 90 days and ultimately upon the
assurance given by local counsel, they handed over the requisite expenses and
signed the Vakalatnama and Affidavit.
10. In the entire application, the appellants have not even mentioned the
name of advocate to whom they instructed to file the appeal and who assured
the appellants about filing of the appeal in the High Court. In my opinion, in
absence of said details, no allegation can be made against the Advocate. As
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 11/21/2022
5:18:04 PM
neither in the application nor in the affidavit it has been mentioned that what is
the name of local counsel and how much amount was paid to the local counsel,
therefore the averments made in the application cannot be accepted.
11. Even from the application it is undisputed fact that the appellants were
aware about the judgement and decree passed by the Court below and they
were aware about the law of limitation for filing of appeal within 90 days,
therefore, as the application does not disclose the reasonable explanation about
condonation of delay occurred in filing of the appeal, the same cannot be
condoned. Resultantly, the application i.e. I.A.No.13508/2017 deserves to be
and is hereby dismissed and consequently, the second appeal is also dismissed.
12. All the pending I.As. also stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
sm
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 11/21/2022
5:18:04 PM
