Madhya Pradesh High Court
Smt. Vidyavati vs Smt. Gyarasibai on 2 May, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 2nd OF MAY, 2023
MISC. CIVIL CASE No. 1208 of 2020
BETWEEN:-
SMT. VIDYAVATI W/O RAVISHANKAR MISHRA,
AGED ABOUT 59 YEARS, OCCUPATION:
1.
HOUSEWIFE, R/O SHASHTRI NAGAR,
KHARGONE (MADHYA PRADESH)
LATE SMT. SAMOTIBAI W/O LATE SHRI DLIYA,
2. DECEASED THROUGH HER LRS LEGAL
REPRESENTATIVES RESPONDENTS NO.3 TO 6
SMT. SUMANBAI W/O SHRI SUDANSINGH
RAJPUT D/O LATE SHRI DLIYA, AGED ABOUT 44
3. YEARS, OCCUPATION: HOUSEWIFE, R/O
VILLAGE JAMALI, TEHSIL KHARGONE
(MADHYA PRADESH)
SMT. SUDHABAI WD/O SHRI MOHANSINGH
RAJPUT D/O LATE SHRI DLIYA, AGED ABOUT 47
4. YEARS, OCCUPATION: HOUSE WIFE, R/O
VILLAGE JAMALI, TEHSIL KHARGONE
(MADHYA PRADESH)
SMT. KANCHANBAI W/O SHRI BAHADURSINGH
RAJPUT D/O LATE SHRI DLIYA, AGED ABOUT 54
5. YEARS, OCCUPATION: HOUSE WIFE, VILLAGE
NIMADKHEDI, TEHSIL KHANDWA (MADHYA
PRADESH)
SMT. MAYA W/O SHRI BHANWERSINGH RAJPUT
D/O LATE SHRI DLIYA, AGED ABOUT 42 YEARS,
6. OCCUPATION: HOUSE WIFE, VILLAGE
SUJAPUR, TEHSIL JAWARA (MADHYA
PRADESH)
.....APPLICANTS
(SHRI RAJOO K. PANDAGRE, LEARNED COUNSEL FOR THE APPLICANTS.)
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 04-05-2023
17:41:41
-2-
AND
SMT. GYARASIBAI W/O LATE SUBHASH
RAJPUT, AGED ABOUT 49 YEARS, OCCUPATION:
1.
WAGES, R/O VILLAGE SURVA, TEHSIL
KASRAWAD, KHARGONE (MADHYA PRADESH)
AJAY S/O SHRI SUBHASH RAJPUT, MINOR
THROUGH HIS MOTHER SMT. GYARASHIBAI
W/O SHRI SUBHASH RAJPUT, AGED ABOUT 49
2.
YEARS, OCCUPATION: WAGES, R/O VILLAGE
SURVA, TEHSIL KASRAVAD (MADHYA
PRADESH)
VIJAY S/O SHRI SUBHASH RAJPUT MINOR
THROUGH HIS MOTHER SMT. GYARASHIBAI
3. W/O SUBHASH RAJPUT, AGED ABOUT 49 YEARS,
OCCUPATION: WAGES VILLAGE, R/O SURVA,
TEHSIL KASRAVAD (MADHYA PRADESH)
CHINTAMANI S/O SHRI SUBHASH RAJPUT
MINOR THROUGH HIS MOTHER SMT.
GYARASHIBAI W/O SUBHASH RAJPUT, AGED
4.
ABOUT 49 YEARS, OCCUPATION: WAGES, R/O
VILLAGE SURVA, TEHSIL KASRAVAD (MADHYA
PRADESH)
STATE OF M.P., THROUGH COLLECTOR,
5.
KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI JYOTI SWAROOP DAVE, LEARNED COUNSEL FOR THE
RESPONDENT NO.1.)
---------------------------------------------------------------------------------------------------------
This application coming on for orders this day, the court passed the
following:
ORDER
Present MCC is filed seeking restoration of Second Appeal
No.155/2011 which was dismissed for want of prosecution on
25.07.2011.
[1] Learned counsel for the applicant submits that all the
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 04-05-2023
17:41:41
applicants are female and they had no knowledge about dismissal of
their appeal on 25.07.2011, it was a duty of the advocate to appear in the
appeal and argue on admission. During the Covid the applicant No.1
came to know about the death of applicant No.2 and when her son
enquired about the online status of the case he found that the case had
been dismissed on 25.07.2011 thereafter, this applicant came and
engaged a new counsel and filed the present application.
[2] The appeal was not even heard on admission, for the fault of
counsel, the parties should not suffer. In the interest of justice, the delay
may kindly be condoned and appeal be restored.
[3] Shri Jyoti Swaroop Dave, learned counsel for the respondent
No.1 vehemently opposes the aforesaid MCC as well as application for
condonation of delay by filing reply. According to Shri Dave, there is no
bona fide on part of the applicant, there is a huge delay of 9 years which
is not liable to be condoned. In support of his contention he has placed
reliance on two judgments passed by this Court in case of Lokpal Singh
v/s Matre and others [2019 (1) mpwn 27] and Ramadhar Sharma v/s
State of M.P. [2021(II) MPWN 52]. In these two judgments the second
appeals were dismissed as they were filed beyond the limitation period.
In this case the second appeal was filed within limitation but it was
dismissed due to non-appearance of the counsel.
Heard.
[4] All the applicants are ladies, they were not aware that the
counsel engaged by them did not appear before the Court to argue the
appeal on admission. The Apex Court in catena of decision has held that
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 04-05-2023
17:41:41
the Court should be liberal in condoning the delay.
In view of the above, the delay is condoned, MCC is hereby
allowed.
Second Appeal No.155/2011 is restored for admission.
Office is directed to keep a photocopy of this order in Second
Appeal No.155/2011.
(VIVEK RUSIA)
JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 04-05-2023
17:41:41
