Smt. Meera Bai vs Kunj Bihari
2022 Latest Caselaw 12085 MP

                                                     1
                                  IN THE HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                       BEFORE
                                     HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                           ON THE 12th OF SEPTEMBER, 2022

                                         MISC. PETITION No. 4381 of 2021

                               BETWEEN:-
                          1.   SMT. MEERA BAI W/O LATE RAMSEWAK
                               PATEL, AGED ABOUT 78 YEARS, KATHONDA,
                               TEH.PANAGAR (MADHYA PRADESH)

                          2.   RAMSHARAN PATEL S/O LATE RAMSEVAK
                               PATEL, AGED ABOUT 53 YEARS, GRAM
                               KATHONDA   TEHSHIL PANAGAR  DISTT.
                               (MADHYA PRADESH)

                          3.   DHANIRAM S/O LATE RAMSEVAK, AGED
                               ABOUT 45 YEARS, GRAM KATHONDA TEHSHIL
                               PANAGAR DISTT. (MADHYA PRADESH)

                          4.   UTTARABAI W/O MAHESHPRASAD PATEL,
                               AGED ABOUT 40 YEARS, GRAM NATWARA TEH.
                               SHAHPURA DISTT. (MADHYA PRADESH)

                          5.   SHIV PRASAD PATEL S/O LT SHRI RAGHUNATH
                               PATEL, AGED ABOUT 73 YEARS, GRAM-
                               KATHONDA, TEH-PANAGAR, DISTT-JABALPUR
                               MP (MADHYA PRADESH)

                                                                            .....PETITIONER
                               (BY SHRI N.K. JAIN-ADVOCATE)

                               AND
                          1.   KUNJ BIHARI S/O BHAGWANDAS SAHU, AGED
                               ABOUT 52 YEARS, 271, DARHAI SARAFA,
                               JABALPUR (MADHYA PRADESH)

                          2.   DIYOSERAN CORPORATION AT JABALPUR
                               THROUGH FATHER METHUE WALAR S/O
                               THAMUS, AGED ABOUT 84 YEARS, BISASP
                               HOUSE AHILYABAI MARG , CANT, DISTT.
                               (MADHYA PRADESH)

                          3.   COLLECTOR      JABALPUR DISTT.   (MADHYA
                               PRADESH)
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 9/13/2022
4:46:58 PM
                                                        2
                          4.      RAM MILAN PATEL S/O RAGHUNATH PATEL,
                                  AGED ABOUT 70 YEARS, GRAM KATHONDA
                                  TEH.PANAGAR DISTT. (MADHYA PRADESH)

                                                                                       .....RESPONDENTS


                                This petition coming on for hearing this day, th e court passed the
                          following:
                                                               ORDER

This miscellaneous petition has been preferred challenging the order

dated 20.09.2019, whereby learned 8th Additional District Judge, Jabalpur has condoned the delay in filing of the regular civil appeal.

2. Learned counsel for the petitioners submits that after dismissal of suit

vide judgment and decree dated 01.09.2017, respondent-1/plaintiff preferred civil appeal with delay. He further submits that the learned appellate Court issued notice to the defendants/petitioners but from the order-sheets dated 09.02.2018 to 10.07.2019, it is clear that notices were not received back after service. Thereafter, suddenly on 20.09.2019 without service of notice on the petitioners, learned appellate Court had taken up the application under Section 5 of the Limitation Act and even in the impugned order dated 20.09.2019, learned appellate Court has not mentioned anything about service of notice on the petitioners/defendants and without giving an opportunity of filing reply to the application under Section 5 of the Limitation Act, allowed the same. 3 . After hearing the learned counsel for the petitioners and after perusing the order sheets of learned appellate Court from 09.02.2018 to 20.09.2019, it is clear that the learned appellate Court has condoned the delay even without service of notice of the application on the petitioners/defendants. Accordingly, the impugned order dated 20.09.2019 is hereby set-aside with the further

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 9/13/2022 4:46:58 PM

direction to the learned appellate Court to consider the application under Section 5 of the Limitation Act afresh.

4 . Learned counsel for the petitioners undertakes that they will appear before the first appellate Court in the regular civil appeal on the next date fixed and if they don't appear before the first appellate Court, the learned first appellate Court after treating the service of notice on them may proceed further and the impugned order dated 20.09.2019 shall remain intact.

5. It is made clear that this Court has not commented anything on merits of the case.

6. With the aforesaid observations, this petition stands disposed of.

(DWARKA DHISH BANSAL) JUDGE sh

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 9/13/2022 4:46:58 PM