Bhagwandas vs Smt. Anita
2023 Latest Caselaw 14024 MP

                                                              1
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                        SA No. 327 of 2023
                                            (BHAGWANDAS AND OTHERS Vs SMT. ANITA AND OTHERS)

                          Dated : 25-08-2023
                                Shri Sanjay Sarwate - Advocate for the appellants.

                                Shri Somesh Rai - Advocate for the respondent 1.

Heard on I.A.No.2134/2023, which is an application under Section 5 of Limitation Act.

Registry has reported this appeal to be barred by 2198 days.

Supporting the averments made in the application, learned counsel for the appellants/plaintiffs submits that the suit was filed for cancellation of sale deed dated 31.03.2011 and permanent injunction in which counter claim was filed by the defendants for recovery of possession of the land in question. After trial, the suit was dismissed vide judgment and decree dated 02.03.2016 and by the same judgment and decree the counter claim for possession was also decreed. Against which, the plaintiffs preferred first appeal which was also dismissed on 25.10.2016, the plaintiffs preferred review petition which was decided on 27.09.2017, whereby learned first appellate Court dismissed the counter claim

against which, misc. appeal No.3075/2017 was filed by the defendants before the High Court which was decided on 08.12.2022, whereby the order dated 27.09.2017 passed in review petition was set aside.

Learned counsel submits that after decision in the misc. appeal the present second appeal has been filed after a lapse of period of about 50 days only. Learned counsel submits that the period taken in decision of the misc. appeal deserves to be excluded from the calculation of period of limitation in filing the second appeal and if it is so, then there is no delay in filing of the Signature Not Verified Signed by: ANUPRIYA SHARMA CHOUBEY Signing time: 8/26/2023 11:36:16 AM

second appeal.

Learned counsel for the respondents opposed the prayer for condonation of delay by filing reply to the application under Section 5 of the Limitation Act and prays for dismissal of the application.

Heard learned counsel for the parties and perused the record. After perusal of the record, the contentions raised on behalf of the appellants and not opposed by the respondents, appear to be correct. Apparently, after decision of first appeal on 25.10.2016, review petition was filed and was allowed vide order dated 27.09.2017 against which respondents/defendants preferred misc. appeal No.3075/2017 which was

decided on 08.12.2022 and now the second appeal has been filed on 06.02.2023.

In view of the aforesaid, in my considered opinion, the delay occurred in filing of the second appeal deserves to be and is hereby condoned.

Accordingly, I.A.No.2134/2023 is allowed and disposed off.

(DWARKA DHISH BANSAL) JUDGE

anu

Signature Not Verified Signed by: ANUPRIYA SHARMA CHOUBEY Signing time: 8/26/2023 11:36:16 AM