Madhya Pradesh High Court
Smt. Mamta Rani vs Hira Singh on 3 February, 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 3 rd OF FEBRUARY, 2023
SECOND APPEAL No. 401 of 2020
BETWEEN:-
SMT. MAMTA RANI W/O LATE GUMAN SINGH, AGED
ABOUT 32 YEARS, OCCUPATION: AGRICULTURIST R/O
SINGPUR, P.O. SINGPUR TAH. JAWERA, DISTT. DAMOH
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI SHYAM YADAV, ADVOCATE)
AND
1. HIRA SINGH S/O BHABUT SINGH, AGED ABOUT 66
YE A R S , R/O BEHIND HANUMANTAL POLICE
STATION , MAA KHERMAI WARD HOUSE NO. 80
JABALPUR, TAH. AND DISTT. JABALPUR
(MADHYA PRADESH)
2. DOULAT SINGH S/O JANAK SINGH, AGED ABOUT
60 YEARS, SINGPUR P.O. SINGPUR TEH. JAWERA
DISTT DAMOH (MADHYA PRADESH)
3. SMT. RAMDULARI @ MAMTA BAI W/O LATE
SUNDAR SINGH, AGED ABOUT 65 YEARS,
SINGPUR P.O. SINGPUR TEH. JAWERA DISTT
DAMOH (MADHYA PRADESH)
4. BHAJAN SINGH S/O SUNDAR SINGH, AGED
ABOUT 35 YEARS, SINGPUR P.O. SINGPUR TEH.
JAWERA DISTT DAMOH (MADHYA PRADESH)
5. STATE OF MP THR COLLECTOR DAMOH
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAVINDRA SHUKLA, ADVOCATE)
This appeal coming on for admission/order this day, the court passed
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/7/2023
12:04:13 PM
2
the following:
ORDER
This second appeal has been preferred challenging the final order dated 06/12/2019
passed by 2 nd Additional District Judge, Damoh, District Damoh in RCA No.3/2019,
whereby regular civil appeal filed by the appellant/defendant 2 has been dismissed as
barred by limitation, which was filed challenging the judgment and decree dated
30/11/2017 passed by 6 th Civil Judge Class-II, Damoh in RCS No.1100030-A/2016,
whereby suit filed by respondent 1/plaintiff- Hira Singh was decreed to the extent of
½ share out of 1/3 share of Narvad Singh.
2. Learned counsel for the appellant/defendant 2 submits that while considering the
application under Section 5 of the Limitation Act, learned first appellate Court should
have taken liberal view. He submits that after passing of judgment and decree dated
30/11/2017 by learned trial Court, the appellant was not informed by the counsel and
she being illiterate and rustic villager remained under belief that her appeal is pending.
On 05.02.2019 the counsels informed the appellant about the judgment and decree and
while returning the file/brief, they asked the appellant about requirement of filing of the
appeal. He further submits that the appellant is illiterate lady and delay occurred in the
aforesaid circumstances, deserved to be condoned and learned first appellate Court has
erred in dismissing the application under Section 5 of the Limitation Act and in
refusing to condone the delay.
3. Heard learned counsel for the appellant and perused the impugned final order as well
as the record.
4. While passing the impugned order, learned first appellate Court has observed that
from the annexed certified copy of the judgement and decree dtd. 30.11.2017 of trial
Court, it is clear that application for obtaining certified copy of the judgement and
decree was filed on 15/03/2018 which after preparation was received by the appellant
on 16/03/2018 but the appeal was filed by the appellant/defendant 2 after lapse of a
period of one year i.e. on 05/02/2019, which is also the date on which the information
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/7/2023
12:04:13 PM
is said to have been given by the local counsels to the appellant. Further, the appellant
had been appearing in the proceedings before the trial Court as well as before tahsil
Court but no reasonable explanation has been offered in the application for condonation
of delay of a long period of about 400 days, therefore, it cannot be said that the
appellant was not aware about the proceedings or about the judgement and decree of
trial Court.
5. In view of the aforesaid findings recorded by learned first appellate Court and from
bare perusal of the application under Section 5 of the Limitation Act filed before first
appellate Court, it appears that the delay is alleged to have occurred due to mistake of
the counsel, but no affidavit of the concerning counsel has been filed in support of the
application. Even otherwise, a very sketchy application has been filed without
explaining the delay and even no reasonable and correct explanation has been offered in
the application for condonation of delay of about 400 days in filing the civil appeal.
6. 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.
7. As such, in my considered opinion, learned first appellate Court has not committed
any illegality in passing the impugned order and in dismissing the civil appeal as barred
by limitation. Even otherwise, the share declared by learned trial Court is in accordance
with the Hindu Succession Act, 1956.
8. Resultantly, the second appeal fails and is hereby dismissed. However, no
order as to costs. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/7/2023
12:04:13 PM
RS
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/7/2023
12:04:13 PM
