Madhya Pradesh High Court
Harnarayan vs Radheshyam on 7 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 7 th OF DECEMBER, 2023
SECOND APPEAL No. 1170 of 2015
BETWEEN:-
1. HARNARAYAN S/O BRINDAWAN SHUKLA, AGED
ABOUT 55 YEARS, AJANDA TAH- GADARWARA
(MADHYA PRADESH)
2. AMBIKA PRASAD S/O BRINDAWAN SHUKLA,
AGED ABOUT 44 YEARS, AJANDA TAH-
GADARWARA (MADHYA PRADESH)
3. SHYAM BAI W/O BRINDAWAN SHUKLA, AGED
ABOUT 80 YEARS, AJANDA TAH- GADARWARA
(MADHYA PRADESH)
.....APPELLANTS
(BY MS. SUDIPTA CHOUBEY - ADVOCATE)
AND
1.
RADHESHYAM (NOW DEAD THROUGH LRS)
1A. ARVIND, AGED ABOUT 40 YEAR, S/O LATE
RADHESHYAM, R/O VILLAGE AJANDA, TAHSIL
GADARWARA, POST OFFICE DEETEPON,
DISTRICT NARSINGHPUR (M.P)
AJAY, AGED ABOUT 35 YEARS, S/O LATE
1B. RADHESHYAM, R/O VILLAGE AJANDA, TAHSIL
GADARWARA, POST OFFICE DEETEPON,
DISTRICT NARSINGHPUR (M.P)
ARUN, AGED ABOUT 35 YEARS, S/O LATE
RADHESHYAM, R/O VILLAGE AJANDA, TAHSIL
1C. GADARWARA, POST OFFICE DEETEPON,
DISTRICT NARSINGHPUR (M.P)
ASHISH, AGED ABOUT 28 YEARS, S/O LATE
RADHESHYAM, R/O VILLAGE AJANDA, TAHSIL
GADARWARA, POST OFFICE DEETEPON,
1D. DISTRICT NARSINGHPUR (M.P)
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 12/9/2023
5:17:14 PM
2
SADHA, AGED ABOUT 36 YEARS, S/O LATE
RADHESHYAM, R/O VILLAGE AJANDA, TAHSIL
GADARWARA, POST OFFICE DEETEPON,
DISTRICT NARSINGHPUR (M.P)
1E.
MANJU, AGED ABOUT 28 YEARS, S/O LATE
RADHESHYAM, R/O VILLAGE AJANDA, TAHSIL
GADARWARA, POST OFFICE DEETEPON,
DISTRICT NARSINGHPUR (M.P)
1F.
2. KOSA BAI W/O LATE GAURISHANKAR SHUKLA,
AGED ABOUT 80 YEARS, AJANDA TAH-
GADARWARA (M.P)
3. TARA BAI W/O LATE RAMESHWAR SHUKLA,
AGED ABOUT 60 YEARS, AJANDA TAH-
GADARWARA (M.P)
4. PRABHU DAYAL S/O LATE RAMESHWAR SHUKLA,
AGED ABOUT 50 YEARS, AJANDA TAH-
GADARWARA (M.P)
5. NIRANJAN S/O LATE RAMESHWAR SHUKLA,
AGED ABOUT 50 YEARS, AJANDA TAH-
GADARWARA (M.P)
6. RAMKRIPAL S/O LATE RAMESHWAR SHUKLA,
AGED ABOUT 37 YEARS, AJANDA TAH-
GADARWARA (M.P)
7. RAJJAN S/O LATE RAMESHWAR SHUKLA, AGED
ABOUT 33 YEARS, AJANDA TAH- GADARWARA
(M.P)
.....RESPONDENTS
(BY SHRI SHEERSH AGRAWAL - ADVOCATE FOR RESPONDENT - 1)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Heard on I.A.No.15580/2015, which is an application under Order 22
Rule 4 CPC for substitution of legal representatives of respondent 1-
Radheshyam. From the date of death mentioned in the application, which is
also supported by an affidavit, the same is within limitation, therefore, is allowed
with the direction to learned counsel for the appellants to carryout necessary
amendment in the memo of appeal, today itself.
2. Accordingly, I.A.No.15580/2015 is allowed/disposed off.
3. Also heard on I.A.No.13962/2015, which is an application for
condonation of delay in filing of the second appeal.
4. Registry has reported this appeal to be barred by 3855 days.
5. Supporting the averments made in the application learned counsel for the
appellants submits that the appellants are poor and illiterate persons and after
getting knowledge of dismissal of their civil appeal on 20.12.2004, contacted to
the counsel of the High Court and filed the appeal with delay of 34 days on
03.05.2005, but subsequently without registration, the memo of appeal was
returned by registry of this Court, copy of first page of memo of appeal has
been placed on record as (Annexure A/3).
6. Learned counsel submits that thereafter the appellants could not contact to
the counsel and even the counsel also made several efforts to file it again but
Registry of this Court did not accept the appeal, thereafter the appellants came
and sworn the affidavit and filed the appeal again on 20.10.2015. Learned
counsel submits that in the aforesaid circumstances sufficient cause mentioned
in Section 5 of the Limitation Act, should be considered liberally and delay in
filing of the second appeal should be condoned.
7. Learned counsel appearing for the legal representatives of the respondent 1-
Radheshyam, supports the impugned judgment and decree and submits that
without furnishing sufficient details in respect of the long delay, the appellants
have filed the application, which deserves to be dismissed.
8. Heard learned counsel for the parties and perused the record.
9. It is very much surprising that after alleged filing of the second appeal on
06.05.2005 against the judgment and decree dated 20.12.2004, the same was
returned to the appellants' counsel, however when it was filed and was returned
to the counsel, is not mentioned in the application. As to why, the returned
memo of appeal has not been placed before this Court, is not clear, which
creates doubt.
10. It is also very much surprising that when the memo of appeal for the
reasons best known to the appellants' counsel was returned to him/her, then
why it was not again filed before the Registry of the Court after rectifying the
defects, if any.
11. Perusal of the application shows that it is very sketchy and does not
mention all the details, as argued by the counsel orally and no
sufficient/reasonable explanation has been given in the application and only the
bald allegations against the counsel have been made.
12. The Supreme Court in the case of Pundlik Jalam Patil vs. Executive
Engineer, Jalgaon Medium Project and another (2008) 17 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
Sridevi and Others AIR 2022 SC 332.
13. Accordingly, I.A No.13962/2015 deserves to be and is hereby
dismissed. Resultantly, the second appeal is also dismissed.
14. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
SN
