Madhya Pradesh High Court
Lotan Singh vs Omkar Singh on 18 April, 2023
Author: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 18 th OF APRIL, 2023
MISC. PETITION No. 1484 of 2022
BETWEEN:-
LOTAN SINGH S/O SHRI KHELANSINGH, AGED ABOUT
52 YEARS, OCCUPATION: AGRICULTURIST R/O
VILLAGE JHIRIKALA DORGAON TEHSIL AND DISTRICT
NARSINGHPUR M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI B.P.YADAV, ADVOCATE)
AND
1. OMKAR SINGH S/O SHRI DAULAT SINGH
MALLAH, AGED ABOUT 57 YEARS, AT PRESENT
R/O VILLAGE GHATPIPARIYA (MAHADEV
PIPARIYA) PS. THEMI TEHSIL AND DISTRICT
NARSINGHPUR M.P. (MADHYA PRADESH)
2. BHARTI W/O KHEMCHAND D/O LATE
KHEERSAGAR MALLAH, AGED ABOUT 24 YEARS,
AT PRESENT R/O VILLAGE-SANGAI, TEHSIL-
GADARWARA, DISTRICT-NARSINGHPUR
(MADHYA PRADESH)
3. SHRI DAULAT SINGH( DEAD) S/O LATE SHRI
DAMRA MALLAH THROUGH LRS GAUTAM S/O
SHRI DAULAT SINGH MALLAH, AGED ABOUT 56
YEAR S , R/O VILLAGE KURELA, TEHSIL AND
DISTRICT-NARSINGHPUR (MADHYA PRADESH)
4. MEERABAI W/O KHARAGRAM D/O LATE DAULAT
SINGH R/O VILLAGE KUMHADI, POLICE STATION
, TEHSIL AND DISTRICT-NARSINGHPUR
(MADHYA PRADESH)
5. SMT. KRISHNA BAI W/O KILAI KEWAT D/O LATE
DAULAT SINGH R/O VILLAGE KERPANI(SARSALA)
, TEHSIL-KARELI, DISTRICT-NARSINGHPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: NEETI TIWARI
Signing time: 24-04-2023
11:09:52
2
6. STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, NARSINGHPUR DISTRICT-
NARSINGHPUR(M.P.) (MADHYA PRADESH)
7. SMT GYAANI BAI W/O CHHOTE LAL MALLAH,
AGED ABOUT 59 YEARS, R/O VILLAGE
KERPANI(SARSALA) , TEHSIL-KARELI, DISTRICT-
NARSINGHPUR (MADHYA PRADESH)
8. SMT PEDABAI W/O SHRI PRITAM SINGH
MALLAH, AGED ABOUT 54 YEARS, R/O VILLAGE
KURELA, TEHSIL AND DISTRICT-NARSINGHPUR
(MADHYA PRADESH)
9. SMT. SHYAMBAI W/O SHRI SHIV PRASAD
MALLAH, AGED ABOUT 51 YEARS, R/O VILLAGE
JUGPURA TEHSIL SHAHPURA DISTT. JABALPUR
(MADHYA PRADESH)
10. SMT. SHANTIBAI W/O SHRI ANANDI LAL
MALLAH, AGED ABOUT 45 YEARS, R/O VILLAGE
JUGPURA TEHSIL SHAHPURA DISTT. JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJAY SANYAL - ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner has filed this petition under Article 227 of Constitution of India
challenging order dated 27.03.2021 contained in Annexure-P/1.
2. Matter was heard in first round in absence of petitioner. Later on,
counsel appeared for petitioner and made a prayer for hearing him. His prayer
was allowed and counsel for petitioner was also heard.
3. Petitioner has filed this petition challenging impugned order dated
27.03.2021 passed by First ADJ Narsinghpur District-Narsinghpur in case i.e.
M.C.A.No.19/2018 (Lotan Singh Vs. Omkar & Ors.) and a prayer was made
that case be remanded back to trial Court and trial Court be directed to pass
Signature Not Verified
Signed by: NEETI TIWARI
Signing time: 24-04-2023
11:09:52
fresh orders on application for setting aside ex parte decree and on application
under Section 5 of Condonation of delay.
4. Counsel appearing for petitioner submitted that no summons were
served on petitioner and procedure under Order 5 Rule 17, 18 & 19 CPC was
not followed and there is no affidavit of service on serving officer, nor his
statement was recorded. Petitioner had no knowledge of judgment dated
30.11.1993 and decree dated 03.12.1993. Petitioner learnt about said judgment
and decree, when he was informed by his counsel Shri J.P.Mishra. Petitioner
obtained certified copy of decree and, thereafter, filed an application under
Order 9 Rule 13 on 03.10.1994. Application was filed within 30 days from date
of receiving of certified copies. Petitioner has given detailed reasoning and has
shown sufficient cause for not filing application within a period of 30 days from
30.11.1993. Petitioner was proceeded ex parte on 24.01.1990. Petitioner was
not served and was made ex parte on the basis of service report dated
24.01.1990. It is submitted that Court below committed an error in not believing
the statement of J.P.Mishra, Advocate and that of petitioner. It is submitted that
petitioner has good case on merits. In these circumstances, writ petition may be
allowed and impugned order dated 27.03.2021 passed by First Additional
District Judge, Narsinghpur in Appeal M.C.A.No.19/2018 be set-aside.
5. Counsel appearing for respondents had supported the order passed by
appellate Court. It is submitted by him that petitioner has filed an application
under Section 5 of Limitation Act on 27.02.2015. Ex parte decree was passed
on 03.12.1993. Application under Section 5 of Limitation Act has been filed
after 23 years. Appellate Court has not committed any error of law in dismissing
the application under Section 5 of the Act and consequently dismissing the
appeal. In view of same, counsel appearing for respondents made a prayer for
Signature Not Verified
Signed by: NEETI TIWARI
Signing time: 24-04-2023
11:09:52
dismissal of writ petition.
6. Heard learned counsel for parties.
7. Annexure-P/4 is an application under Section 5 of Limitation Act,
which was filed in Appeal. Petitioner has mentioned in said application that ex
parte judgment was passed on 30.11.1993 and exparte decree was passed on
03.12.1993. Petitioner learnt about exparte decree on 27.07.1994 when he came
to his counsel-J.P.Mishra. His counsel informed him that copy of judgment and
decree was displayed on notice board, from where he had learnt the same. On
learning said facts, petitioner applied for certified copy of same on 27.07.1994
and after obtaining certified copy on 12.09.1994 and examining records,
petitioner had filed an application for condonation of delay on 27.02.2015.
8. Appellate Court held that exparte judgment was passed on 30.11.1993
and application under Section 5 of Limitation Act was filed on 27.02.2015.
There is delay of 20 years in filing application for condonation of delay,
therefore, application under Section 5 of Limitation Act was dismissed. The
Court has to consider delay in filing of application under Order 9 Rule 13 of
CPC, which is registered as MJC No.14-A/1993. Application under Order 9
Rule 13 was filed on 03.10.1994. There was delay in filing of application under
Order 9 Rule 13 CPC.
9. From facts mentioned by petitioner and respondents, it appears that no
application for condonation of delay was filed along with application under
Order 9 Rule 13 CPC. Application under Section 5 of Limitation Act was filed
on 27.02.2015. Now, question before the Court is as to whether running of time
will stop on 03.10.1994 or on 27.02.2015, when application under Section 5 of
Act was filed ?
Signature Not Verified
Signed by: NEETI TIWARI
Signing time: 24-04-2023
11:09:52
Section 9 of Limitation Act is quoted as under :
9. Continuous running of time.â€ÂÂ"Where once time
has begun to run, no subsequent disability or inability to institute a suit
or make an application stops it: Provided that where letters of
administration to the estate of a creditor have been granted to his
debtor, the running of the period of limitation for a suit to recover the
debt shall be suspended while the administration continues.
10. From perusal of aforesaid Section, it is clear that running of time will
stop when application under Section 5 of Limitation Act is filed.
11. In view of same, petitioner is required to explain the delay from
judgment dated 30.11.1993 to filing of application under Section 5 of Limitation
Act i.e. on 27.02.2015. Appellate Court has not committed any error in
dismissing application under Section 5 of Limitation Act because delay from
30.11.1993 to 27.02.2015 was not satisfactorily explained by petitioner.
12. Writ petition filed by petitioner is dismissed.
(VISHAL DHAGAT)
JUDGE
nd
Signature Not Verified
Signed by: NEETI TIWARI
Signing time: 24-04-2023
11:09:52
