Madhya Pradesh High Court
Jumma Bai vs Munnibai on 9 February, 2024
Author: Dwarka Dhish Bansal
Bench: 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 FEBRUARY, 2024
MISC. CIVIL CASE No. 3213 of 2023
BETWEEN:-
JUMMA BAI W/O SHRI GENDALAL JHARIA, AGED
ABOUT 56 YEARS, R/O PREM NAGAR KATANGI, TEHSIL
PATAN, DISTRICT JABALPUR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI ASHISH KUMAR TIWARI - ADVOCATE)
AND
1. MUNNIBAI W/O ANLINAL JHARIA, AGED ABOUT
43 YEARS, R/O POLICE STATION NEAR Q TYPE
KHAMARIYA DISTRICT JABALPUR (MADHYA
PRADESH)
2. JAGDEO S/O SHRI HIRA LAL PATEL RESIDENT OF
VILLAGE SIMARIYA (KARARI) TEHSIL PATAN
DISTRICT JABALPUR (MADHYA PRADESH)
3. RAJKUMAR S/O SHRI HIRA LAL PATEL RESIDENT
OF VILLAGE SIMARIYA (KARARI) TEHSIL PATAN
DISTRICT JABALPUR (MADHYA PRADESH)
4. TILAKRAJ S/O SHRI HIRA LAL PATEL RESIDENT
OF VILLAGE SIMARIYA (KARARI) TEHSIL PATAN
DISTRICT JABALPUR (MADHYA PRADESH)
5. STATE OF MADHYA PRADESH THROUGH
COLLECTOR JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
This application coming on for admission this day, the court passed the
following:
ORDER
Heard on IA No.20621/2023, which is an application under Section 5
of the Limitation Act for condonation of delay in filing MCC/application for
restoration of S.A. No.466/2014.
2. Registry has reported this MCC to be barred by 3401 days.
3 . Supporting the averments made in the application learned counsel
submits that the applicant was not aware about dismissal of her appeal, which
was dismissed by the Registrar (J-I) on 19.01.2016 due to non-compliance of
common conditional order dtd. 16.06.2014. It is contended that the counsel for
the applicant was prosecuting the appeal with due diligence and the applicant's
husband Gendalal Jharia, who was taking care of the appeal, had expired on
17.05.2017, therefore, the applicant could not know the result of second appeal.
It is contended that when the applicant came to know about dismissal of her
appeal then she approached to the High Court on 24.11.2023 and consulted
with new counsel and after engagement of new counsel the application for
certified copy was filed on 24.11.2023, which after preparation was delivered
on 28.11.2023. Thereafter application for restoration of second appeal was filed
on 28.12.2023. Learned counsel submits that the delay occurred in filing of the
second appeal is based on bonafides of the applicant, hence the sufficient cause
mentioned in section 5 should be considered liberally. With these submissions
he prays for allowing the application for condonation of delay.
4. Heard learned counsel for the applicant and perused the record.
5. Common Conditional order dtd. 16.06.2014 shows that sufficient time
for removing the defaults pointed out by the Registry, was granted but the same
was not removed hence the Registrar (J-I) vide its order dtd. 19.01.2016
dismissed the second appeal due to non-compliance of peremptory order.
Except the ignorance of the proceedings, no other ground has been taken in the
application and no averments regarding previous counsel and negligence on his
part have been made. Even the name of previous counsel has not been
mentioned in the application. Perusal of the application shows that it does not
disclose sufficient ground for condonation of long delay of 3401 days.
6. Perusal of record of second appeal also shows that trial court decreed
the suit of the plaintiff partly in respect of survey No.438/2 and dismissed the
suit in respect of land of Khasra No.438/1, which came in share of defendant 1
and was sold by defendant 1 in favour of defendants 2-4. The judgment and
decree passed by trial court was affirmed by first appellate court vide judgment
and decree dtd. 19.12.2006, against which second appeal was filed on
08.05.2014 with delay of 2564 days.
7 . The Supreme Court in the case of Pundlik Jalam Patil vs. Executive
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.
8 . As such, there being no reasonable or proper explanation of 3401
days' delay in filing of the MCC, the IA No.20621/2023 deserves to be and is
hereby dismissed.
9. Resultantly, the MCC is also dismissed.
10. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
ss
