Santosh vs Ram Bhajan Gupta
2023 Latest Caselaw 1724 MP

                                1

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                            BEFORE
         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                   ON THE 31st OF JANUARY, 2023

                 SECOND APPEAL No. 770 of 2013

     Between:-
1.   SANTOSH S/O SWAMIDEEN GUPTA AGED
     ABOUT 42 YEARS

2.   RAMLAKHAN S/O SWAMIDEEN GUPTA AGED
     ABOUT 38 YEARS

3.   RAMCHANDRA S/O SWAMIDEEN            GUPTA,
     AGED ABOUT 40 YEARS

4.   MU.  GOMTI    BAI   WD/O       SWAMIDEEN
     GUPTA,AGED ABOUT 61 YEARS

5.   SMT. MANJULA GUPTA W/O SANTOSH GUPTA,
     AGED ABOUT 38 YEARS

     ALL   R./O  VILLAGE-CHARHET,     TAH.-
     JAYSINGH NAGAR, DISTRICT-SHAHDOL (M.P.)
                                                  .....APPELLANTS
     (SHRI R.L. SHUKLA, ADVOCATE)


     AND

1.   RAM BHAJAN GUPTA S/O SADHULAL GUPTA,
     AGED ABOUT 61 YEARS, R/O VILLAGE-
     CHARGET,     TAH.-JAYSINGH   NAGAR,
     DISTRICT-SHAHDOL (M.P.)

2.   STATE OF M.P.   THROUGH COLLECTOR,
     DISTRICT-SHAHDOL (M.P.)

                                              .....RESPONDENTS

     (BY SHRI R.P. MISHRA, ADVOCATE FOR
     RESPONDENT 1)
                                     2

      (BY SHRI GAJENDRA PARASHAR, PANEL
      LAWYER FOR RESPONDENT 2-STATE)


...................................................................................................................................................................

      This appeal coming on for orders/admission this day, Court passed
the following:
                                ORDER

This second appeal has been preferred by the defendants 1-5 challenging the order dated 20.07.2013 passed by learned Additional District Judge, Beohari, District Shahdol in case No. (unregistered) whereby regular civil appeal has been dismissed as barred by limitation filed against the judgment & decree dated 31.01.2009 passed by learned Civil Judge Class-II, Jaisinghnagar, District Shahdol in Civil Suit No.32- A/2007 whereby suit filed by the respondent 1-Ram Bhajan Gupta for declaration of title, permanent injunction and for recovery of possession was decreed.

2. Learned counsel for the appellants/defendants 1-5 by placing reliance on the decisions in the case of Dindayal Bansal Vs. Gwalior Nagar Tatha Gram Vikas Pradhikaran 2007(5)MPHT 470 and Salikram and others Vs. Keshav and others 2012(1)MPHT 408 submits that while considering the application under Section 5 of the Limitation Act, learned first appellate Court ought to have taken liberal view. He submits that after passing of the judgment & decree dated 31.01.2009 by trial Court, the appellants were not informed by the counsel or by the Court and after getting knowledge of the same, the appellants got applied for certified copy of the impugned judgment & decree and after receipt of the same, appeal was filed immediately and prior to 08.04.2010, the appellants had no knowledge of the judgment & decree passed by learned trial Court. Accordingly, he submits that the

learned first appellate Court has erred in dismissing the application under Section 5 of the Limitation Act and in refusing to condone the delay of about 400 days.

3. Heard learned counsel for the appellants and perused the impugned final order as well as the record.

4. While passing the impugned order, learned first appellate Court has observed that in the original civil suit, on the date of final arguments i.e. on 28.01.2009, the appellant Santosh Gupta was present in the trial Court and he himself signed the order sheet and on that date itself, the case was fixed for final judgment for 31.01.2009 in presence of appellant Santosh Gupta and the judgment & decree was passed by learned trial Court on 31.01.2009 itself, therefore, it cannot be said that the appellants were not aware about the proceedings of the trial Court or about the judgment & decree of trial Court passed on 31.01.2009. This Court has also gone through order sheet dated 28.01.2009 and found that the observation made by learned first appellate Court is correct.

5. 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 and even the name of the counsel has also not been mentioned. Even otherwise a very sketchy application has been filed without explaining the delay and even no reasonable explanation has been offered in the application for condonation of delay of about 400 days in filing the civil (first) 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 final order and in dismissing the civil (first) appeal as barred by limitation.

8. Resultantly, the second appeal fails and is hereby dismissed. However, no order as to costs.

9. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.02.03 15:29:13 +05'30'