Madhya Pradesh High Court
Gangaram vs Rajmal Jain S/O Shri Nathuram Jain ... on 9 February, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 9 th OF FEBRUARY, 2024
MISC. APPEAL No. 3676 of 2018
BETWEEN:-
GANGARAM S/O SHRI MOHAR SINGH @ MORU, AGED
ABOUT 59 YEARS, OCCUPATION: AGRIL. R/O VILL.
MUDRA (MALHARGARH) THASIL MUNGAWALI,
DISTRICT ASHOKNAGAR(MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAJEEV JAIN - ADVOCATE )
AND
1. RAJMAL JAIN S/O SHRI NATHURAM JAIN (DIED)
THR. LEGAL HEIRS
1(a)PUSHPA BAI D/O LATE RAJMAL JAIN W/O
SHRI ASHOK KUMAR, AGED ABOUT 75 YEARS,
R/O THROUGH DR. PRAMOD KUMAR JAIN BUS
STAND MUNGAWALI DISTRICT ASHOK
NAGAR(MADHYA PRADESH)
1 (b). AJEET KUMAR S/O LATE RAJMAL JAIN,
AGED ABOUT 60 YEARS,
1(c).PADAM KUMAR S/O LATE RAJMAL JAIN,
AGED ABOUT 54 YEARS,
1(D).PRADEEP KUMAR S/O LATE RAJMAL JAIN,
AGED ABOUT 47 YEARS,
ALL NO. 1(b) TO 1(d) R/O WARD NO. 4 PURANA
BAZAR, B/H RANGMANCH MUNGAWALI
DISTRICT ASHOKNAGAR (MADHYA PRADESH)
2. ABHAY KUMAR JAIN S/O RAJMAL JAIN SARAF,
AGED ABOUT 63 YEARS, OCCUPATION
SHOPKEEPER, R/O PURANA BAZAR MUNGAWALI
DISTRICT ASHOKNAGAR (MADHYA PRADESH)
2
.....RESPONDENTS
( BY SHRI ARMAN ALI - ADVOCATE)
This appeal coming on for admission this day, the court passed the
following:
ORDER
Appellant has filed this appeal under Order XLIII Rule 1 of CPC against
the order dated 2/5/2018 passed by First Additional District Judge, Mungawali
in MCC No. 2/2017.
2. By the impugned order the application filed by appellant under
Section5 of Limitation Act has been rejected and consequently his application
filed under Order IX Rule 13 CPC read with Section 151 CPC also dismissed
as barred by limitation.
3. Briefly stated facts of the case are that respondents filed a suit against
the appellant vide Civil Suit No. 2-B/2004 for recovery of Rs. 79080/-. It was
alleged that no notice regarding filing of civil suit was ever served upon the
appellant and suit was proceeded ex parte and ex parte judgment and decree
has been passed on 30/12/2014. When appellant got the knowledge of passing
of ex-parte judgmetn and decree he immediately moved an application under
Order IX Rule 13 read with Section 151 of CPC alongwith an application under
Section 5 of Limitation Act for condonation of delay and for setting aside ex
parte judgment and decree which have been rejected by the impugned order.
4. It is the submission of learned counsel for the appellant that appellant
had never got any notice or summon in regard to filing of original suit and nor
he had made any signature over any of the summon; however, by showing
service of false summon over some other person with due collusion of process
server, the respondents got ex parte judgment and decree passed in their favour.
It is further submitted that earlier also vide order dated 22/11/2010 the same
applications were rejected by the Additional District Judge, Mungawali in
Miscellaneous Case No. 9/10 against which appellant preferred M.A.No.
187/2011 before this Court, which was disposed of vide order dated
16/11/2016 and matter was remanded back to Court below to decide the
applications afresh; however, the court in same manner again dismissed the
application without going into the submissions made by the appellant and
rulings cited in order dated 16/11/2016. It is further submitted that from the
examination-in-chief of Bundelsingh under Order XVIII Rule 4 CPC it is also
clear that he specifically stated that "------U;k;ky; ds fdlh Hkh deZpkjh@pijklh ds }kjk
xaxkjke iq= catkjkuk;d ij dksbZ rkehy ugha djkbZ gS uk gh gekjs }kjk dksbZ gLrk{kj gekjs lkeus
rkehyh djkus ds laca/k esa dHkh fd;s gS A uk geus xokgh dh gS A 3- ;gfd esjs uke ds xyr :i
ls nLr[kr cukdj xyr :i ls xaxkjke dh rkehyh gks tkuk fdlh deZpkjh ds }kjk U;k;ky;
Jheku dks cryk;k gS ftlds vk/kkj ij xaxkjke ds f[kykQ ,drjQk dk;Zokgh esa QSlyk djk
fy;k x;k vkSj og viuk i{k U;k;ky; Jheku ds le{k ugha j[k lds gSa] ftl dkj.k xaxkjke ds
}kjk lgh vkosnu i= izLrqr fd;k gS A ;gh esjk c;ku gS A" Thus it is clear that
respondents in collusion with process server got fake signature of some one
showing service of summon over the appellant.
5. On the other hand, learned counsel for the respondents supported the
impugned order and prayed for dismissal of the appeal.
6. After having heard learned counsel for the parties and perusing the
statement of Bundelsingh, trial Court erred in dismissing the application under
Section 5 of Limitation Act while not condoning the delay in filing application
under Order IX Rule 13 CPC and this Court is of the opinion that sufficient
cause has been shown by the appellant for condonation of delay, therefore,
while allowing the application under Section 5 of Limitation Act, matter is
remanded back to Court below to decide the application filed by appellant
under Order IX Rule 13 CPC for setting aside ex parte judgment and decree
dated 30/12/2004 on its own merits in a time bound period not later than three
months. Parties are directed not to sought unnecessary adjournments and to
appear before the Court below on 13th March, 2024.
7. With the aforesaid observation, appeal stands allowed and disposed
of.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
JPS/-
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
JAI PRAKASH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR,
2.5.4.20=287738d30aabaeda9b10cecdf179cec865c76
33f4cfb9e38ce14fcbb05b9522a, postalCode=474001,
SOLANKI
st=Madhya Pradesh,
serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D
8C01433EBD48AE4F609F108CA8F8DE6B522, cn=JAI
PRAKASH SOLANKI
Date: 2024.02.20 10:43:39 +05'30'
