Kesar Bai @ Mamta Bai vs Sheel Kumari @Guddi Bai ...
2023 Latest Caselaw 3264 MP

                                     1
 IN       THE       HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                            BEFORE
         HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                      ON THE 22 nd OF FEBRUARY, 2023
                       MISC. APPEAL No. 4646 of 2022

BETWEEN:-
KESAR BAI @ MAMTA BAI D/O LATE DEENBANDHU
BADAYE, AGED ABOUT 30 YEARS, W/O SHIV PRASAD
BADAYE, R/O VILLAGE MADA, TEHSIL SIHORA, DISTT,
JABALPUR (MADHYA PRADESH)

                                                                 .....PETITIONER
(BY SHRI DILEEP TIWARI- ADVOCATE)

AND
1.       SHEEL KUMARI @GUDDI BAI VISHWAKARMA
         (BADAYE), W/O LATE DEENBANDHU (BADAYE),
         AGED ABOUT 50 YEARS, AT PRESENT NEAR
         SARAY STATION KATNI, DISTT. KATNI (M.P.)
         PERMANENT ADD: VILLAGE KANWARA, TEH.
         AND DISTT. KATNI (MADHYA PRADESH)

2.       NAGARPALIKA      NIGAM       THROUGH
         COMMISSIONER NAGAR PALIKA NIGAM KATNI
         (MADHYA PRADESH)

                                                              .....RESPONDENTS
(BY SHRI SATISH KUMAR DUBEY- ADVOCATE FOR RESPONDENT NO.1 )

         This appeal coming on for admission this day, th e court passed the
following:
                                      ORDER

Heard on I.A. No. 11854/2022, an application for condonation of delay.

2. It is submitted by the counsel for the appellant that the respondent had filed an application for grant of succession.

3. Although the notices were issued to the General Public but the

appellant was not made a party and a succession certificate was issued in favour of respondent No. 1. Thereafter, the appellant filed an application under Section 383 of the Indian Succession Act. However, the said application was rejected by order dated 21.10.2016 passed in Succession Case No. 3/14 with a finding that the appellant is not the daughter of Deenbandhu. Against the said order, the appellant preferred a civil suit which was registered as RCS No.10A/17 and the said civil suit has been dismissed by judgment and decree dated 18.02.2022 with a finding that against an order of succession, an appeal is provided and against the order of mutation, an appeal is provided before the revenue authority.

4. It is submitted by the counsel for the appellant that the period spent by the appellant before the Civil Court is liable to be excluded. It is further submitted that after the dismissal of the civil suit, the appellant was suffering from Stomach Ulcer and Weekness, therefore, she was under treatment from 15.02.2022 to 26.07.2022 and for the said purpose, she has also filed a certificate issued by the Doctor. It is further submitted that the appeal was filed on 30.09.2022. Thus, it is prayed that in light of Section 14 of the Limitation Act as well as in light of the fact that the appellant was medically sick, therefore, there was a sufficient cause for not filing the appeal within a period of limitation.

5. Per contra, the application is vehemently opposed by the counsel for the respondent. It is submitted that against the order of grant of succession or rejection of her application under Section 383 of Indian Succession Act, the appellant should have filed an appeal and instead of doing that she on her own went to the Civil Court and, therefore, it cannot be said that the appellant was diligently prosecuting her case before the Court having no jurisdiction.

6. Heard learned counsel for the parties.

7. It is well established principle of law that the litigant have to act upon the legal advice given by their counsel. After the rejection of her application filed under Section 383 of Indian Succession Act if her counsel had advised her to file a civil suit, then it cannot be said that mere filing of a civil suit by the appellant, was a rash and negligent act on the part of the appellant.

8. Accordingly, this Court is of the considered opinion that the period spent by the appellant for prosecuting her civil suit i.e. 17.01.2017 till 18.02.2022 is liable to be excluded under Section 14 of the Limitation Act.

9. However, the next question for consideration is as to whether the appellant was medically sick from 15.02.2022 to 26.07.2022 or not? The appellant has merely relied upon a certificate issued by Dr.S.K. Pandey, Graduate by Ayurvedic Medicine & Surgery, Sihora, Jabalpur according to which the appellant was suffering from Leucorrhea, Stomach Ulcer and weakness and she was under his continuous treatment, the delay may be condoned.

10. The counsel for the appellant is not in a position to satisfy this Court as to whether Dr.S.K. Pandey was competent to practice on medicine and surgery or not?

11. Furthermore, not a single prescription as well as single receipt of

purchasing medicine has been filed to show that the appellant was under treatment. Furthermore, Sihora is hardly 35 km away from Jabalpur.

12. Under these circumstances, this Court is of the considered opinion that no good ground has been made out by the appellant to condone the delay after dismissal of her civil suit.

13. Accordingly, the application i.e. I.A. No. 11854/2022 filed under

Section 5 of the Limitation Act is hereby dismissed.

14. As a consequence thereof, the miscellaneous appeal is also dismissed as barred by time.

(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.02.22 17:36:18 +05'30'