Madhya Pradesh High Court
Makhan vs Badami Bai on 17 August, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 17 th OF AUGUST, 2023
FIRST APPEAL No. 1718 of 2023
BETWEEN:-
1. MAKHAN S/O LATE SAWAI LAL, AGED ABOUT 62
YE A R S , OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SIHORE
(MADHYA PRADESH)
2. KAILASH S/O LATE SAWAI LAL, AGED ABOUT 45
YE A R S , OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
3. SATYENDRA S/O LATE CHOTE LAL, AGED ABOUT
22 YEARS, OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
4. SURENDRA S/O LATE SAWAI LAL, AGED ABOUT 20
YE A R S , OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
5. SUMAN BAI W/O LATE BARELAL, AGED ABOUT 60
YE A R S , OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
6. VIJAY S/O LATE BARELAL, AGED ABOUT 40
YE A R S , OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
7. DEEPAK S/O LATE BARE LAL, AGED ABOUT 35
YE A R S , OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
8. RAJENDRA S/O LATE BARE LAL, AGED ABOUT 32
YE A R S , OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 8/18/2023
4:57:07 PM
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9. BHUPENDRA S/O LATE BARE LAL, AGED ABOUT
28 YEARS, OCCUPATION: LABOUR R/O KASBA
DORAHA TEHSIL SHYAMPUR DISTRICT SEHORE
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI PRAHLAD CHOUDHARY-ADVOCATE)
AND
1. BADAMI BAI W/O RAM SINGH, AGED ABOUT 65
YEARS, R/O LIG 385 MUKHARJEE NAGAR DEVAS
DISTRICT DEWAS (MADHYA PRADESH)
2. RAM SINGH S/O RAMKISHAN RANA, AGED
ABOUT 67 YEARS, R/O LIG-385 MUKHERJEE
NAGAR DEVAS DISTRICT (MADHYA PRADESH)
3. SARASWATI BAI W/O PAWAN SINGH, AGED
ABOUT 60 YEARS, R/O HATPEEPLIYA INFRONT OF
P.S. TEHSIL BAGLI DISTRICT DEVAS (MADHYA
PRADESH)
4. DHARMEDNRA SINGH S/O PAWAN SINGH RANA,
AGED ABOUT 35 YEARS, R/O HATPEEPLIYA
INFRONT OF P.S. TEHSIL BAGLI DISTRICT DEVAS
(MADHYA PRADESH)
5. PIYUSH SHARMA S/O SANJAY SHARMA R/O 88
BRIGHT COLONY IDGAH HILLS BHOPAL
(MADHYA PRADESH)
6. SMT. SONIYA SHARMA W/O SANJAY SHARMA,
AGED ABOUT 44 YEARS, R/O 88 BRIGHT COLONY
IDGAH HILLS BHOPAL (MADHYA PRADESH)
7. SMT. SEEMA SHARMA W/O PADAM SHARMA R/O
169 PRABHU NAGAR IDGAH HILLS BHOPAL
(MADHYA PRADESH)
8. STATE OF M.P. THROUGH COLLECTOR DISTRICT
SEHORE (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
This appeal coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 8/18/2023
4:57:07 PM
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following:
ORDER
Heard on IA No.12288/2023, which is an application under section
5 of the Limitation Act for condonation of delay in filing of the first appeal.
2. Registry has reported this appeal to be barred by 2852 days.
3. Supporting the averments made in the application learned counsel
submits that appellant 1 is of the age of more than 75 years and is suffering
from paralysis since last 10 years and is bed ridden. The other appellants are
illiterate persons and are poor farmers having no knowledge about the suit, as
the same was contested only by plaintiff 1 being eldest member in their family.
It is also submitted that during pendency of the suit appellant 1 suffered with
paralytic attack and thus not in a position to speak even a single word due to
such disease and could not allege the fact of pendency of suit to the other
family members i.e. other plaintiffs, hence they all have no knowledge about the
suit and the judgment passed in it.
4. The judgment and decree impugned came in the knowledge of
other appellants only when in the month of July, 2023 the Revenue Officers
came on the field and started demarcation of the suit land, then the appellants
collected the certified copy of the judgment and decree on 17.07.2023 and met
with an advocate at Jabalpur to file the appeal. Accordingly, learned counsel
submits that there is no malafide on the part of the appellants in non-filing of the
appeal and the delay of 7 years 10 months/2852 days is based on bonafides of
the appellants. By placing reliance on the documents of medical treatment
learned counsel submits that the 'sufficient cause' mentioned in Section 5 of the
Limitation Act should be construed liberally. In support of his submissions he
also placed reliance on the decision of a Coordinate Bench of High Court of
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 8/18/2023
4:57:07 PM
Himachal Pradesh, Shimla in the case of Ramesh Negi vs. Hira Lal Mehta,
passed in RSA No.447/2006 dtd. 24.10.2018.
5. Heard learned counsel for the appellants and perused the record.
6. From the cause title of the memo of appeal and the impugned
judgment it is clear that there are total nine appellants and all are major. From the
impugned judgment it is also clear that out of 9 plaintiffs, plaintiff 9-Bhupendra
was examined as PW-1, therefore, it cannot be said that all the
plaintiffs/appellants were not aware about pendency of the civil suit, as has been
mentioned in the application. Prima facie, the contention made in the application
appears to be incorrect in the light of examination of plaintiff 9-Bhupendra
Singh before the court. From the impugned judgment it is also clear that suit has
been dismissed in respect of title and while deciding issue no.8 it has also been
held that the suit is barred by principle of res judicata because previous suit
was based on the exclusive ownership on the basis of Will allegedly executed
by Sawailal and after death of Sawailal all the sons and daughters are having
equal share in the suit property.
7. From perusal of the application filed under Section 5 of the
Limitation Act it is clear that the condonation of delay has been sought only on
the ground that the appellant 1-Makhan being eldest person was taking care of
the litigation on behalf of all other plaintiffs and all the other plaintiffs/appellants
were not aware about the litigation and the judgment passed by learned court
below. In the light of available documents and explanation offered, it cannot be
said that the plaintiffs/appellants have made out sufficient cause for condonation
of delay of 2852 days.
8. The Supreme Court in the case of Pundlik Jalam Patil vs.
Executive Engineer, Jalgaon Medium Project and another (2008) 17
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 8/18/2023
4:57:07 PM
SCC 448 has observed that the Court cannot enquire into belated and stale
claims on the ground of equity. Delay defeats equity. The Courts help those
who are vigilant and "do not slumber over their rights". The aforesaid judgment
has further been followed recently in the case of Majji Sannemma @
Sanyasirao vs. Reddy Srivedi and Others AIR 2022 SC 332.
9. Resultantly, the I.A. No.12288/2023 deserves to be and is
hereby dismissed. As a result thereof, the first appeal is also dismissed.
10. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
ss
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 8/18/2023
4:57:07 PM
