Madhya Pradesh High Court
Mehtab vs Jagmohan Bhawsar on 2 August, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1 FA-153-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 2 nd OF AUGUST, 2024
FIRST APPEAL No. 153 of 2024
MEHTAB
Versus
JAGMOHAN BHAWSAR AND OTHERS
Appearance:
SHRI ARVIND DUDAWAT - SENIOR ADVOCATE WITH SHRI
ARUN DUDAWAT - ADVOCATE FOR THE APPELLANT.
SHRI AMIT LAHOTI - ADVOCATE FOR RESPONDENT NO.1.
SHRI PRABHAT PATERIA - GOVT. ADVOCATE FOR
RESPONDENT NO.2/STATE.
NONE FOR RESPONDENT NO.3 (FORMAL RESPONDENT).
ORDER
Heard on I.A. No.511/2024 , which is an application under Order 41
Rule 3-A of CPC r/w Section 5 of the Limitation Act for condonation of
delay caused in filing the present appeal.
The appellant/defendant No.1 has filed this first appeal against the
judgment and decree dated 27.02.2004 passed by IVth Additional District
Judge, Vidisha in Civil Suit No.40-A/2003, whereby the suit filed by the
respondent No.1 for specific performance of agreement to sale has been
decreed against the appellant and respondent No.3.
The instant appeal has been filed on 22.01.2024 while the impugned
judgment and decree which is ex-parte is dated 27.02.2004. Thus, the appeal
is delayed by a period of nearly 20 years.
2 FA-153-2024
It is submitted by the learned counsel for the appellant/applicant that
after receiving the notice of the civil suit the appellant had contacted Shri
V.K.Jain, Advocate and signed the Vakalatnama. Meanwhile, the plaintiff
and the above named Advocate became near relative. Shri V.K.Jain,
Advocate engaged another Advocate Shri B.R.Pandey as counsel for the
appellant without giving any information or obtaining his consent. The above
counsel Shri Pandey pleaded no instructions before the trial Court and on that
basis the Court proceeded ex-parte and ultimately decreed the suit in favour
of plaintiff/respondent No.1. The appellant got the knowledge of impugned
judgment and decree only after receiving the notice of the execution
proceedings. The applicant is an illiterate rustic villager and fraud has been
played with him. Hence, prayer has been made to condone the delay
occurred in filing the appeal.
On the contrary, the learned counsel for respondent No.1/plaintiff has
vehemently opposed the application and prayed for its dismissal.
Heard learned counsel for rival parties and perused the material
available on the record.
As per the appellant's version, he got the knowledge of impugned
judgment and decree only after receiving the notice of execution proceedings
in the year 2017. But the perusal of record reveals this fact that the impugned
judgment and decree was in his knowledge since very beginning i.e. year
2004, and he has initiated proceedings under Order 9 Rule 13 CPC for
setting aside such judgment and decree in the year 2004 itself which came to
be dismissed on 07.02.2005. No appeal has been filed by the applicant
3 FA-153-2024
against the order of the Court, nor preferred any appeal against the impugned
judgment and decree. Though he was having full knowledge of the same
instead, against the provisions of law, the appellant against filed the same
application for setting aside the judgment and decree in the year 2017 and
this repeat application has also been dismissed by the trial Court. Still, the
appellant did not pursue the remedy of appeal. It is pertinent to note that the
execution proceedings are pending since the year 2004, and he was very well
aware of it.
In view of the aforesaid discussion, it is amply clear that the appellant
was not precluded from filing the appeal on time for the reasons beyond his
control. The reason shown for the delay is not at all bonafide and acceptable.
There is no proper explanation for the delay of 20 years. Thus, there is no
legal basis to condone the delay of such a long period.
Hence, the application filed by the appellant under Order 41 Rule 3-A
of CPC r/w Section 5 of the Limitation Act deserves to be and is hereby
dismissed.
Accordingly, the appeal filed by the appellant is also dismissed as time
barred.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
Adnan
