Madhya Pradesh High Court
Devnarayan Sharma vs Mst. Vivdanti Devi @ Devanti Kunwari on 2 January, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2 nd OF JANUARY, 2024
MISC. PETITION No. 4347 of 2021
BETWEEN:-
DEVNARAYAN SHARMA S/O SHRI PARMESHWAR
SHARMA, AGED ABOUT 60 YEARS, OCCUPATION:
SERVICE R/O GREEN HUT COLONY NAVJIVAN BIHAR
P.S. AND POST VINDHYANAGAR TEHSIL AND DISTT.
SINGRAULI M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI A.S. BAGHEL - ADVOCATE)
AND
1. MST. VIVDANTI DEVI @ DEVANTI KUNWARI W/O
LATE SHRI DEVKISHUN SHARMA, AGED ABOUT
54 YEARS, R/O GREEN HUT COLONY NAVJIVAN
BIHAR P.S. AND POST VINDHYANAGAR TEHSIL
AND DISTT. SINGRAULI M.P. (MADHYA PRADESH)
2. SANGEETA D/O LATE SHRI DEVKISHUN SHARMA,
AGED ABOUT 30 YEARS, R/O GREEN HUT COLONY
NAVJIVAN BIHAR P.S. AND POST
VINDHYANAGAR TEHSIL AND DISTT. SINGRAULI
M.P. (MADHYA PRADESH)
3. SHWETA D/O LATE SHRI DEVKISHUN SHARMA,
AGED ABOUT 26 YEARS, R/O GREEN HUT COLONY
NAVJIVAN BIHAR P.S. AND POST
VINDHYANAGAR TEHSIL AND DISTT. SINGRAULI
M.P. (MADHYA PRADESH)
4. SITA KUMARI D/O LATE SHRI DEVKISHUN
SHARMA, AGED ABOUT 24 YEARS, R/O GREEN
HUT COLONY NAVJIVAN BIHAR P.S. AND POST
VINDHYANAGAR TEHSIL AND DISTT. SINGRAULI
M.P. (MADHYA PRADESH)
5. DEEPAK KUMAR S/O LATE SHRI DEVKISHUN
SHARMA, AGED ABOUT 24 YEARS, R/O GREEN
HUT COLONY NAVJIVAN BIHAR P.S. AND POST
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 02-01-2024
19:07:34
2
VINDHYANAGAR TEHSIL AND DISTT. SINGRAULI
M.P. (MADHYA PRADESH)
6. SHOBHA KUMARI D/O LATE SHRI DEVKISHUN
SHARMA, AGED ABOUT 20 YEARS, R/O GREEN
HUT COLONY NAVJIVAN BIHAR P.S. AND POST
VINDHYANAGAR TEHSIL AND DISTT. SINGRAULI
M.P. (MADHYA PRADESH)
7. SMT. RANJU THAKUR W/O SHRI MAHESH
KUMAR THAKUR, AGED ABOUT 54 YEARS,
OCCUPATION: HOUSEWIFE R/O CONTRACTOR
COLONY REHAND NAGAR /BIJAPUR (UTTAR
PRADESH)
8. STATE OF MADHYA PRADESH THR. COLLECTOR
DISTT-SINGRAULI (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ATUL DWIVEDI - PANEL LAWYER FOR THE RESPONDENT NO.8)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Petition is filed by the petitioner being aggrieved of
the order dated 09.07.2021 Annx.P/1, passed by learned V Civil Judge, Class-
II, Waidhan, District Singrauli (M.P.), in MJC No.29/2018. Petitioner is also
aggrieved of order dated 06.09.2011 Annx.P/2, passed by learned Addl. Civil
Judge Class-I to the Court of Civil Judge, Class-I Waidhan, District Singrauli
(M.P.), in Civil Suit No.11-A/2011.
2. Vide order Annx.P/2, suit of the petitioner/plaintiff was dismissed for want
of prosecution. Thereafter, petitioner had moved an application for setting
aside the ex-parte proceedings, but that application under Order 9 Rule 4 of
Code of Civil Procedure has been rejected, on the ground that it being barred
by law of limitation.
3. Admittedly, suit was dismissed on 06.09.2011. An application for
restoration was filed on 22.02.2018. Thus, there is delay of more than 6 years
in seeking restoration. The ground which has been mentioned in the application
is that he was working in Thermal Power Center, Korba, District Bilaspur(CG),
where because of excessive heat, he developed eye problem. He was taking
treatment at various places and, therefore, could not contact his counsel. On
01.02.2018, he came to Singrauli and met his counsel who informed him about
the dismissal of the suit for want of prosecution and, therefore, an application
under Section 5 of the Limitation Act was filed.
4. A perusal of the impugned order Annx.P/1, reveals that on 06.09.2011 on
12:30 p.m., counsel for the plaintiff had pleaded no instructions. At 4:30 p.m.
again plaintiff was called for, but he did not appear and, therefore, suit was
dismissed for want of prosecution. Application for restoration was filed on
22.02.2018. There was delay of six years five months in seeking restoration.
Trial Court has observed that petitioner/plaintiff was admittedly moving in
connection with his treatment. He was also gainfully engaged and, therefore, his
contention that he could not contact his counsel and when he came back to
Singrauli in 2018, contacted his counsel, is not a sufficient ground for
condoning the delay.
5. I have carefully perused the judgment of a Coordinate Bench of this High
Court in Mahila Jagannathi wd/o Sitaam Vs. Naga S/o Dhudilal and
others [1997 (2) M.P.L.J.326]. The ratio of that judgment is that negligence
of the counsel should not come in the way of such restoration and, therefore,
suit was restored.
6. In the present case, there is no allegation of negligence of the counsel.
Counsel had admittedly pleaded no instructions. There is no material available
on record to show that any disciplinary action was initiated against the counsel
for negligence and, therefore, negligence of the counsel being not made out,
ratio of law laid down in case of Mahila Jagannathi (supra) is not available to
the facts of the present case.
7. In view of such fine appreciation of material available on record, this Court
is not in a position to take any view contrary to the one taken by learned trial
Court. Therefore, petition being cryptic and having failed to establish ground
for condonation of delay deserves to be dismissed and is, hereby, dismissed.
(VIVEK AGARWAL)
JUDGE
A.Praj.
