Madhya Pradesh High Court
Lachchhu @ Laxmi Prasad Patel vs Smt. Gudda @ Budhiya Bai on 6 January, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6 th OF JANUARY, 2023
SECOND APPEAL No. 757 of 2019
BETWEEN:-
LACHCHHU @ LAXMI PRASAD PATEL S/O LATE
JAMMAN @ JAMUNA PATEL, AGED ABOUT 72 YEARS,
R/O VILLAGE PARASWARA, POST AND POLICE CHOUKI
GOUR, THANA BARELA, DISTT. JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI HEMANT RAO NAIDU - ADVOCATE)
AND
1. SMT. GUDDA @ BUDHIYA BAI W/O LATE SURAJ
PATEL, D/O LATE JAMMAN ALIAS JAMUNA
PATEL, AGED ABOUT 76 YEARS, R/O VILLAGE
MAGARDHA, THANA BARGI, DISTT. JABALPUR
(MADHYA PRADESH)
2. VAIJANTI BAI W/O KAMAL SINGH BAGHEL D/O
LATE JAMMAN ALIAS JAMUNA PATEL, AGED
ABOUT 66 YEARS, VILLAGE PIPARIYA (TEVAR)
BHEDAGHAT ROAD P.S. BHEDAGHAT DIST.
JABALPUR (MADHYA PRADESH)
3. SMT. MUNNI BAI W/O DASRATH PATEL D/O LATE
JAMMAN @ JAMUNA PATEL, AGED ABOUT 56
YEARS, GRAM CHOUKITAL LAMHEGHAT ROAD
P.S. BHEDAGHAT DIST. JABALPUR (MADHYA
PRADESH)
4. DABBAL SINGH PATEL S/O LATE JAMMAN PATEL,
AGED ABOUT 71 YEARS, VILLAGE PARASWADA
POST AND P.S. GOUR THANA BARELA DIST.
JABALPUR (MADHYA PRADESH)
5. SMT. DURGABAI PATEL W/O LATE JODHA PATEL
D/O LATE JAMMAN @ JAMUNA PATEL, AGED
ABOUT 73 YEARS, VILLAGE PARASWADA POST
AND P.S. GOUR THANA BARELA DIST. JABALPUR
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 13-Jan-23
6:45:41 PM
2
(MADHYA PRADESH)
6. COLLECTOR, THE STATE OF MADHYA PRADESH,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI R. MATHAI - PANEL LAWYER FOR THE RESPONDENT
NO.6/STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal under Section 100 CPC has been filed against the
order/judgment and decree dated 20.12.2018 passed by the 18th Additional
District Judge, Jabalpur in MJC No.573/2016 by which the application filed by
the appellant under Section 5 of Limitation Act for condonation of delay in
filing the appeal has been rejected and as a consequence thereof the civil appeal
filed by the appellant has also been dismissed as barred by limitation.
Facts necessary for disposal of the present appeal in short, are that the
appellant suffered a decree dated 30.03.2016 passed by 11th Civil Judge Class-
1, Jabalpur in Civil Suit No.39-A/2015. Thereafter, the appellant preferred a
Civil Appeal on 16.11.2016 along with an application under Section 5 of
Limitation Act.
It was pleaded by the appellant that an ex-parte decree was passed
against the appellant on 30.03.2016 and the appellant came to know about the
said fact only when an application was filed before the Tahsildar Circle
Khamariya for mutation. Accordingly, the appeal is being filed with a delay of
197 days. It was the case of the appellant that delay is not voluntary and there is
sufficient and bonafide cause for not filing the appeal within the period of
limitation.
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 13-Jan-23
6:45:41 PM
Per contra, the application is vehemently opposed by the counsel for the
respondent.
By the impugned order dated 20.12.2018, the First Appellate Court has
rejected the application filed under Section 5 of Limitation Act and as a
consequence thereof has also dismissed the civil appeal as barred by limitation.
Challenging the order passed by the Court below, it is submitted by the
counsel for the appellant that there was sufficient cause for not filing the appeal
within a period of limitation. The appellant was not aware of passing of
decree. As an ex-parte decree was passed and the appeal was filed immediately
after coming to know about the impugned judgment and decree and accordingly
proposed the following substantial question of law:-
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lEEkr gS\
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5- D;k oknhx.k oknxzLr Hkwfe dk dCtk izkIr djus ds ckn ls izfroknhx.k ds
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 13-Jan-23
6:45:41 PM
fo:) bl vk'k; dh LFkkbZ fu"ks/kkKk izkIr djus ds vf/kdkjh gSa] fd izfroknhx.k
oknhx.k ds LoRo ,oa vkf/kiR; dh oknxLr Hkwfe ij Lo;a vFkok vU; fdlh ds
ek/;e ls n[ky ,oa vojks/k ugha djsaxs\
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Heard the learned counsel for the appellant.
It is clear from the impugned order as well as from the record of the trial
Court that the appellant/defendant No.2 was served with a notice and
accordingly he entered appearance before the trial Court on 20.01.2014 and his
counsel filed the Vakalatnama. It appears that on 14.07.2014, the appellant did
not appear and accordingly the case was adjourned on 23.07.2014. On
23.07.2014 also the appellant did not appear and accordingly he was proceeded
ex-parte and the case was fixed for recording of ex-parte plaintiffs witnesses.
Thereafter on 24.09.2014, the appellant filed an application for setting aside ex-
parte proceedings and the said application was allowed by order dated
07.01.2015 on payment of cost of Rs.300/-. Thereafter, on 02.02.2015, the
appellant did not appear and accordingly once again he was proceeded ex-parte
and the case was fixed for recording of ex-parte plaintiff evidence. Thereafter,
the case was adjourned on 26.02.2015, 12.03.2015, 08.04.2015, 27.04.2015 and
22.06.2015. On 25.08.2015, the evidence of the plaintiff witnesses were
recorded. Thereafter again on 27.10.2015, 20.11.2015, 07.12.2015, 08.01.2016
and 24.02.2016 the case was adjourned. On 16.03.2016, the evidence of
plaintiff witnesses were recorded and on the same day the plaintiff closed his
evidence. Accordingly, the case was fixed for 21.03.2016 for final arguments.
Thereafter on 21.03.2016 and 29.03.2016 the case was adjourned and ultimately
the final arguments were heard on 30.03.2016 and on the very same day, the
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 13-Jan-23
6:45:41 PM
judgment was passed.
Thus, it is clear that initially the appellant was proceeded ex-parte on
23.07.2014 as he had also not appeared on 14.07.2014. Thereafter, the ex-parte
proceedings were set aside by order dated 07.01.2015 and even then the
appellant did not improve his conduct and again on 02.02.2015, he did not
appear and again he was proceeded ex-parte. Ultimately, the appellant did not
appear before the trial Court for more than one year as a result he suffered an
ex-parte decree. The only reason assigned by the appellant in the application for
condonation of delay is that an ex-parte decree was passed, therefore, he was
not aware of the said decree. The application is completely silent about his
conduct before the trial Court.
It is true that the delay should be condoned by adopting a lenient view
but too much of leniency will also cause irreparable loss to the other party who
was vigilantly contesting his or her case. If the delay in filing of appeal is
condoned, then the appellant would certainly pray for setting aside the ex-parte
decree. As a result, the plaintiff would be relegated back to the very initial stage
of the suit. When, the appellant was deliberately avoiding his appearance before
trial Court, then the respondents/plaintiffs cannot be made to suffer.
Accordingly, this Court is of the considered opinion that the appellate
Court did not commit any mistake by rejecting the application which was filed
for condonation of delay.
As no proposed substantial question of law arises in the present appeal,
accordingly, the appeal fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 13-Jan-23
6:45:41 PM
vinay*
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 13-Jan-23
6:45:41 PM
