Madhya Pradesh High Court
Smt. Kamla Dube vs Smt. Usha Vishwakarma on 11 July, 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 11 th OF JULY, 2023
MISC. CIVIL CASE No. 1676 of 2019
BETWEEN:-
1. SMT. KAMLA DUBE W/O SHRI RAMSWAROOP
DUBEY, AGED ABOUT 45 YEARS,
2. SMT. SHEELA DUBEY W/O SHRI PRAMOD DUBEY,
AGED ABOUT 34 YEARS,
BOTH ARE R/O VILLAGE GAHARWAR, TEHSIL
AND DISTT CHHATARPUR (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI MANOJ KUSHWAHA, ADVOCATE)
AND
1. SMT. USHA VISHWAKARMA W/O SHRI MATHURA
PRASAD VISHWAKARMA, AGED ABOUT 37 YEARS,
2. SARMAN BADHAI S/O LATE ARJUN BADHAI
BOTH RESPONDENTS 1 & 2 ARE R/O VILLAGE
BHELSI, TAHSIL & DISTRICT CHHATARPUR
(MADHYA PRADESH)
3. SMT. BHAGWATI W/O LEELADHAR
VISHWAKARMA, AGED ABOUT 56 YEARS,
OCCUPATION: D/O GANESH PRASAD
VISHWAKARMA R/O VILLAGE GHINNA, P.O.
PTHA, CHITAHARI TEHSIL LAUNDI, DISTRICT
CHHATARPUR (MADHYA PRADESH)
4. SMT. VIMLA VISHWAKARMA W/O LAXMAN
PRASAD VISHWAKARMA, AGED ABOUT 49 YEARS,
OCCUPATION: D/O GANESH PRASAD
VISHWAKARMA R/O VILLAGE DERI ROAD, P.O.
TEHSIL AND DISTT CHHATARPUR (MADHYA
PRADESH)
5. STATE OF MADHYA PRADESH THR. ITS
COLLECTOR DISTT- CHHATARPUR (MADHYA
PRADESH)
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 7/12/2023
10:46:21 AM
2
.....RESPONDENTS
This application coming on for hearing this day, the court passed the
following:
ORDER
Heard on I.A. No.8541/2019, which is an application for condonation of
delay in filing instant MCC (for restoration of S.A. No.1116/2013 dismissed for
want of prosecution on 19/07/2016).
2. Supporting the averments of the application, learned counsel for the
applicants submits that they time to time asked about the progress/status of the
case but the office of earlier counsel assured that upon decision of the case,
they will inform. He submits that the applicants came to Jabalpur on 07/07/2019
for personal work and went to the Court and upon enquiry in the office of the
High Court, came to know that the case has already been dismissed due to non
presence of earlier counsel, thereafter, the applicants immediately contacted to
the present counsel, who after getting the certified copy of the order dated
19/07/2016, drafted the application/MCC for restoration of second appeal and
filed it on 11/07/2019. He submits that the applicants were not aware about the
dismissal of the case and their counsel also did not inform to them. With the
aforesaid submissions, he submits that after condoning the delay in filing MCC,
the S.A. 1116/2013 be restored.
3. Heard learned counsel for the applicants and perused the record.
4. From perusal of record of second appeal, it is apparent that the civil
suit was filed by Ganga Bai (now dead through LR Smt. Usha Vishwakarma),
which after holding the plaintiff to be Bhumiswami of the land was decreed and
it was also held that the defendant 1 Sarman had no right in the suit property
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 7/12/2023
10:46:21 AM
and further he had no right to transfer the land to the defendants 2-3 (present
applicants). The judgment and decree passed by trial Court on 24/12/2011 was
further affirmed by learned 1st Additional District Judge, Chhatarpur vide
judgment and decree dated 29/08/2013 in C.A. No.12-A/2012 preferred by the
present applicants.
5. From the record of second appeal it is also clear that on 04/09/2014,
14/05/2015, 15/12/2015, 12/01/2016, 21/01/2016, 01/03/2016, 07/04/2016,
13/05/2016, 15/06/2016 and 01/07/2016, the case was adjourned either upon
request made by the counsel for the applicants or in his absence, resultantly,
this Court dismissed the second appeal on 19/07/2016.
6. From perusal of I.A. No.8541/2019 under Section 5 of the Limitation
Act, it is apparent that the applicants have not even mentioned the name of their
previous duly engaged counsel and during pendency of the second appeal when
they contacted to the previous counsel and even upon coming to Jabalpur on
07/07/2019, they contacted to the counsel or not, has not been mentioned.
7. From perusal of the calendar of the year 2019, on 07/07/2019 there
was Sunday but in application para 3, the applicants have averred that on
07//07/2019 they came to the office of the High Court and upon enquiry, they
came to know about dismissal of the second appeal. It is also clear that even
after knowing the decision of second appeal, they did not contact to the
previous counsel, whose name has also not been mentioned in the entire
application.
8. From perusal of the application, it is also clear that the same is very
sketchy and no proper/reasonable and bonafide explanation of delay of 1056
days has been given.
9. The Supreme Court in the case of Pundlik Jalam Patil vs. Executive
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 7/12/2023
10:46:21 AM
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.
10. As such, there being no reasonable explanation in the application
under Section 5 of the Limitation Act, the same deserves to be and is hereby
dismissed.
11. Resultantly, the MCC is also dismissed.
12. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
RS
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 7/12/2023
10:46:21 AM
