Smt. Fatima Bano vs Sayeedulla & Anr
2022 Latest Caselaw 12267 MP

                                                                          1
                                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                                  AT JABALPUR
                                                                       BEFORE
                                                         HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                              ON THE 14th OF SEPTEMBER, 2022

                                                            MISC. APPEAL No. 1467 of 2001

                                               BETWEEN:-
                                               SMT. FATIMA BANO(SINCE DEAD) THROUGH
                                               KHALIQUE ULLAH SHIRAZ S/O LATE KHALIL
                                               ULLAH, RESIDENT OF HOUSE NO.18, GALI
                                               MASZID, NASTAR BANO, BAL BIHAR, BHOPAL

                                                                                                       .....APPELLANT
                                               (NONE )

                                               AND
                                       1.      SAYEEDULLA SON OF SHRI VAHIDULLA AGED
                                               ABOUT 74 YEARS, R/O NASTARAN MASJID
                                               (NEAR) PINDARAN BHOPAL.
                                               KHALIKULLAH SON OF SHRI KHALLILULLAH
                                       2.      AGED ABOUT 34 YEARS, BUS SERVICE-MAHILA
                                               BAL VIKAL M.P. RAISEN M.P.

                                                                                                    .....RESPONDENTS
                                               (BY SHRI RAKESH SAGAR, ADVOCATE)

                                             Th is appeal coming on for hearing this day, t h e court passed the
                                       following:
                                                                           ORDER

Nobody appeared for the appellant on 16.02.2022 as well as on 05.09.2022.

This appeal is filed under Order 43 Rule 1 (d) of the C.P.C. being aggrieved of order dated 11.07.2001 passed in M.J.C. No.4/95 passed by the learned 8th Additional District Judge, Bhopal whereby an application under

Signature Not Verified SAN Order 9 Rule 13 C.P.C. filed in Civil Suit No.2-A/86 is rejected.

Digitally signed by MOHD TABISH KHAN A perusal of the memo of appeal reveals that appellant was represented Date: 2022.09.14 20:20:50 IST

by one Shri J.P. Saxena in Civil Suit and he was very seriously sick in the year

1990 and ultimately died in the year 1993.

Late Shri J.P. Saxena had assured the present appellant that he did not come to Court and whatever proceedings takes place and whenever requirement for his presence will be necessary it will be intimated to her. Appellant fell sick in the year 1991 and was confined to bed. In her absence, court below passed ex-parte order on 30.11.1992, this fact came to the knowledge of the appellant through Shri Prabhat Saxena S/o earlier counsel Late Shri J.P. Saxena that her case was decided on 26.06.1991. Thereafter, an application for setting aside ex- parte judgment was filed on 21.02.1994.

Shri Rakesh Sagar submits that no date of intimation either death of Shri

J.P. Saxena or of ex-parte judgment is explained in the application. No date is given as to when Shri Prabhat Saxena S/o Shri J.P. Saxena had informed the appellant about ex-parte judgment. Therefore, taking all these facts into consideration that appellant had not explained delay for setting aside ex-parte judgment dated 30.11.1992 and also not give proper reason for condonation of delay upto 18.02.1994, Court below dismissed the application under Order 9 Rule 13 CPC.

Perusal of the record and the impugned order reveals that impugned order is in accordance with law. There is no material on record to take any other view as has been taken by learned Court below. There is no merit in the appeal, therefore, appeal fails and is hereby dismissed.

Record of the court below be sent back.

Signature Not Verified
  SAN



                                                                                                 (VIVEK AGARWAL)
Digitally signed by MOHD TABISH KHAN
Date: 2022.09.14 20:20:50 IST                                                                         JUDGE
                                       Tabish





Signature Not Verified
  SAN




Digitally signed by MOHD TABISH KHAN
Date: 2022.09.14 20:20:50 IST