Vinod Kumar vs Anil Kumar Jain
2023 Latest Caselaw 1830 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                          BEFORE
        HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                    ON THE 1 st OF FEBRUARY, 2023
                    WRIT PETITION No. 7014 of 2016

BETWEEN:-
VINOD KUMAR S/O SHRI OMPRAKASH, AGED ABOUT
45 YEARS, OCCUPATION: SHOPKEEPAR R/O NEW ABADI
BHIND (MADHYA PRADESH)

                                                               .....PETITIONER
(BY SHRI S.K.SHRIVASTAVA - ADVOCATE)

AND
1.    ANIL KUMAR JAIN S/O SHRI KHEMCHANDRA
      JAIN, AGED ABOUT 52 YEARS, /R/O SADRA BAZAR,
      BHIND (MADHYA PRADESH)

2.    ANIL KUMAR S/O OMPRAKASH, AGED ABOUT 45
      YEARS, NEW ABADI BHIND (MADHYA PRADESH)

3.    SUNIL KUMAR S/O OMPRAKASH, AGED ABOUT 40
      YEARS, NEW ABADI BHIND (MADHYA PRADESH)

4.    SURESH KUMAR S/O OMPRAKASH, AGED ABOUT
      54 YEARS, R/O NEW ABADI BHIND (MADHYA
      PRADESH)

                                                            .....RESPONDENTS
(BY SHRI B.K.AGARWAL - ADVOCATE)

      This petition coming on for HEARING this day, the court passed the
following:
                                   ORDER

Present petition under Article 227 of the Constitution of India has been preferred by the petitioner assailing the orders dated 22.09.2016 and 05.11.2014 passed by learned Addl. Sessions Judge Bhind and learned IV Civil Judge

Class II, Bhind in M.A.No.29 of 2016 and Misc. Civil Case No.3 of 2014 respectively.

It has been argued by counsel for the petitioner that even though plausible explanation has been tendered before the trial Court for the delay which has been caused in filing application under Order 9 Rule 13 of CPC but the trial Court without appreciating the same, has dismissed the application. Similarly, the appellate Court has also not considered the explanation which was tendered by the petitioner in the application under Section 5 of Limitation Act filed along with the application under Order 9 Rule 13 of CPC and without considering the same, had dismissed the appeal, against which, present Writ Petition has been

preferred Per contra, learned counsel for the respondents submits that the petitioner was declared exparte in the year 2009 and decree was passed in the year 2012 and in the application under Section 5 of the Limitation Act filed along with the application under Order 9 Rule 13 of CPC for recalling the judgment and decree passed in 2012 and hearing it biparte, no explanation rather, day-to-day explanation was tendered by present petitioner for explaining the delay of more than five years which had occurred in filing the application under Order 9 Rule 13 of CPC.

Heard learned counsel for the parties and perused the record. From the record, it is apparent that the explanation which was required to be furnished in the application under Section 5 of the Limitation Act for the delay caused in filing the application under Order 9 Rule 13 of CPC, does not appear to this Court to have been tendered by the petitioner. In catena of judgments of the Hon'ble Supreme Court, it has been held that day-to-day explanation is required to be tendered by a party seeking condonation of delay

and in case, such explanation is not tendered, inordinate delay should not be condoned on the vague grounds. The reasons assigned in the application under Section 5 of Limitation Act for condoning the delay caused in filing application under Order 9 Rule 13 of CPC are not sufficient to condone the delay. Therefore, the trial court has not committed any error in rejecting the application and so also by the appellate Court while dismissing the appeal.

This petition being devoid of merit, is hereby dismissed.

(MILIND RAMESH PHADKE) JUDGE Rks

RAM KUMAR SHARMA 2023.02.01 18:37:04 +05'30'