Madhya Pradesh High Court
Smt Urmila Singh vs Girija Raman Singh (Deceased) ... on 9 October, 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 9 th OF OCTOBER, 2023
CIVIL REVISION No. 461 of 2018
BETWEEN:-
SMT URMILA SINGH W/O LATE FATEH BAHADUR
SINGH, AGED ABOUT 65 YEARS, R/O RAJENDRA WARD,
ABISHEK GENERAL STORE SEMRIHARCHAND TEH.
SUHAGPAR, DISTRICT HOSHANGABAD (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI SIDDHARTH GULATEE - ADVOCATE)
AND
1. GIRIJA RAMAN SINGH (DECEASED), S/O LATE
SHRI SHANKAR SINGH, THROUGH LEGAL
REPRESENTATIVES - 1(A) BHAWANI
SINGH SOLANKI, S/O LATE GIRIJA RAMAN
SINGH, R/O KALIKA NAGAR, BABAI ROAD,
HOSHANGABAD, CURENTLY R/O SHASKIYA
MAHAVIDHYALAY, NYAS COLONY,
HOSHANGABAD (MADHYA PRADESH)
1(B) VED PRAKASH SOLANKI S/O LATE GIRIJA
R A M A N SINGH, R/O KALI KA NAGAR, BABAI
R O A D , H O S H A N G A B A D CURRENTLY R/O
MANIPURAM GOLDLOAN LTD., MANDIDEEP
(MADHYA PRADESH)
1(C). MEENAKSHI BHADORIA, D/O LATE GIRIJA
R AM AN SIN GH, W/O RAJESH BHADORIA, R/O
N A N D V I H A R C O L O N Y , HOSHANGABAD
(MADHYA PRADESH)
1(D). PADMA RAJPUT D/O LATE GIRIJA RAMAN SINGH,
W / O VIR EN D R A SINGH, R/O GRAM HIRAPUR
TEHSIL TENDUKHEDA, DISTRICT NARSINGHPUR
(MADHYA PRADESH)
2. SMT SEEMA DEVI W/O LATE GIRIJA RAMAN
SINGH, AGED ABOUT 64 YEARS, R/O KALIKA
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 10/10/2023
5:29:10 PM
2
NAGAR, BABAI ROAD, HOSHANGABAD (MADHYA
PRADESH)
3. SMT MAHADEVI W/O MAKHAN SINGH, AGED
ABOUT 48 YEARS, R/O R AJ EN D R A WARD,
ABISHEK GENERAL STOR E, SEMRIHARCHAND,
TEHS IL SUHAGPUR, DISTRICT HOSHANGABAD
(MADHYA PRADESH)
4. SMT RASHMI W/O RAJENDRA SINGH, AGED
ABOUT 37 YEARS, R/O GRAM BAMHORI, TEHSIL
DOLARIA, DISTRICT HOSHANGABAD (MADHYA
PRADESH)
5. SMT MITHILESH (MINU) W/O CHAIN SINGH,
AGED ABOUT 42 YEARS, R/O BEHIND MUSKAN
RESTURANT, KOTHI BAZAR, TEHSIL & DISTRICT
HOSHANGABAD (MADHYA PRADESH)
6. SMT RAGINI W/O SARDAR SINGH RAJPUT, AGED
ABOUT 33 YEARS, R/O AMRAVIHAR C - 21 KOLAR,
BHOPAL (MADHYA PRADESH)
7. SMT MAMTA W/O LATE MASTAN SINGH, R/O MIG
3 0 8 E -7 ARERA COLONY, 11 NO. BUS STOP,
BHOPAL (MADHYA PRADESH)
8. KU POOJA D/O LATE M AS TAN SINGH, AGED
ABOUT 21 YEARS, R/O MIG 3 0 8 E -7 ARERA
COLONY, 11 NO. BUS STOP, BHOPAL (MADHYA
PRADESH)
9. KU SURBHI D/O LATE M ASTAN SINGH, AGED
ABOUT 19 YEARS, R/O MIG 3 0 8 E -7 ARERA
COLONY, 11 NO. BUS STOP, BHOPAL (MADHYA
PRADESH)
10. RUDRA PRATAP S/O LATE VENKAT RAMAN
SINGH, THROUGH LEGAL REPRESENTATIVES -
10(A) JITENDRA SINGH S/O LATE RUDRA PRATAP
SINGH, R/O GRAM S HIVPUR TE H S I L BABAI,
DISTRICT HOSHANGABAD (MADHYA PRADESH)
10(B) SMT. KANTI BAI, W/O LATE SHRI RUDRA
PRATAP SINGH, R/O GRAM S HIVPUR TEHSIL
B A B A I , D I S TR I CT HOSHAN GAB AD (MADHYA
PRADESH)
11. SANTOSH SINGH S/O LATE VENKAT RAMAN
SINGH, R/O GRAMIN KRISHI VISTAR ADHIKARI
O F F I C E UPS AN CHALAK K R I S H I VIBHAG ,
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 10/10/2023
5:29:10 PM
3
RAJNANDGAON, DISTRICT RAJNANDGAON
(CHHATTISGARH)
12. SMT LAKSHMI W/O LATE VENKAT RAMAN
SINGH, R/O G R A M SHIVPUR , TEH S I L BABAI,
DISTRICT HOSHANGABAD (MADHYA PRADESH)
13. STATE OF MP THROUGH COLLECTOR
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI UMESH SHRIVASTAVA - ADVOCATE FOR RESPONDENTS NO. 1
& 2 AND SHRI VIJAY PANDEY - PANEL LAWYER FOR
RESPONDENT/STATE)
Th is revision coming on for hearing this day, th e court passed the
following:
ORDER
This civil revision has been preferred by the applicant/plaintiff challenging
the order dated 17.05.2018 passed by the District Judge, Hoshangabad in Misc.
Civil Appeal No.39/2017 reversing the order dated 18.10.2016 passed by
Second Civil Judge Class-I, Hoshangabad in MJC No. 06/2014, whereby
learned trial Court dismissed the application filed under Order 9 Rule 13 CPC
holding it to be barred by limitation, which in appeal has been allowed by the
learned appellate Court and at the same time ex-parte judgment and decree
dated 09.07.2012 has been set aside with a further direction to restore the civil
suit on its original number.
2. Learned counsel for applicant/plaintiff submits that both the learned
Courts below have erred in allowing the application under Order 9 Rule 13 CPC
which was clearly barred by limitation. After passing of the order on
18.10.2016, the defendants, instead of filing miscellaneous appeal, preferred a
writ petition on 10.01.2017 which was permitted to be withdrawn by the High
Court on 17.8.2017 with liberty to file miscellaneous appeal, in pursuance of
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 10/10/2023
5:29:10 PM
which the defendants filed miscellaneous appeal on 20.09.2017 which, by the
impugned order has been allowed holding it to be within limitation whereas
apparently, the miscellaneous appeal was barred by limitation and no application
for condonation of delay was filed. With the aforesaid submissions, learned
counsel prays for setting aside the impugned orders.
3. Learned counsel appearing for the respondents 1-2 supports the
orders impugned and prays for dismissal of the civil revision with the
contention that in pursuance of the order passed by the High Court on
17.08.2017, the defendants preferred miscellaneous appeal on 20.09.2017
therefore, there was no question of it to be barred by limitation. He further
submits that because in the civil suit no summons was served, therefore, the
learned Courts below have rightly set aside the ex-parte judgment and decree
and by placing reliance on the decision of Supreme Court in the case of Sesh
Nath Singh and Another vs. Baidhyabati Sheoraphuli Cooperative Bank
Limited and Another (2021) 7 SCC 313 (paragraphs 61-62), he submits that
although no application was filed under Section 5 of the Limitation Act but on
the available facts and circumstances of the case, the learned Court below
having jurisdiction to condone the delay even in absence of application, has
rightly passed the impugned order. With the aforesaid submissions, he prays
for dismissal of the civil revision. Paragraphs 61-62 of the decision in the case
of Sesh Nath Singh (supra) are quoted as under:-
"61. Section 5 of the Limitation Act, 1963 does not speak of
any application. The section enables the court to admit an
application or appeal if the applicant or the appellant, as the case
may be, satisfies the court that he had sufficient cause for not
making the application and/or preferring the appeal, within the
time prescribed. Although, it is the general practice to make a
formal application under Section 5 of the Limitation Act, 1963,
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 10/10/2023
5:29:10 PM
in order to enable the court or tribunal to weigh the sufficiency
of the cause for the inability of the appellant applicant to
approach the court/tribunal within the time prescribed by
limitation, there is no bar to exercise by the court/tribunal of its
discretion to condone delay, in the absence of a formal
application.
62. A plain reading of Section 5 of the Limitation Act makes it
amply clear that, it is not mandatory to file an application in
writing before relief can be granted under the said section. Had
such an application been mandatory, Section 5 of the Limitation
Act would have expressly provided so. Section 5 would then
have read that the court might condone delay beyond the time
prescribed by limitation for filing an application or appeal, if on
consideration of the application of the appellant or the applicant,
as the case may be, for condonation of delay, the court is
satisfied that the appellant applicant had sufficient cause for not
preferring the appeal or making the application within such
period. Alternatively, a proviso or an Explanation would have
been added to Section 5, requiring the appellant or the applicant,
as the case may be, to make an application for condonation of
delay. However, the court can always insist that an application
or an affidavit showing cause for the delay be filed. No applicant
or appellant can claim condonation of delay under Section 5 of
the Limitation Act as of right, without making an application."
4. Heard learned counsel for the parties and perused the record.
5. There is concurrent finding of two Courts below that before passing
the ex-parte judgment and decree on 09.07.2012 in civil suit, summons was not
served on defendants 1-2. While dismissing the application under Order 9 Rule
13 CPC as barred by limitation, learned trial Court has also recorded the finding
that no summons was served on the defendants and this finding remained
unchallenged on the part of the applicant.
6. Although, after passing of the order dated 18.10.2016 there is some
delay in filing of the miscellaneous appeal before the lower Appellate Court on
20.09.2017, but in light of the aforesaid judgment of Supreme Court in the case
of Sesh Nath Singh (supra) and also in light of the concurrent findings of the
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 10/10/2023
5:29:10 PM
learned Courts below that no summons was served on the defendants 1-2, this
Court does not find any jurisdictional error in passing the impugned order and
in allowing the application under Order 9 Rule 13 CPC.
7. Resultantly, declining interference in the impugned order, this civil
revision fails and is hereby dismissed.
8. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
Priya.P
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 10/10/2023
5:29:10 PM
