Madhya Pradesh High Court
Smt Khatoon Bai Veva Rapheek vs Jagatnarayan Thapak on 3 May, 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 3 rd OF MAY, 2024
SECOND APPEAL No. 1866 of 2023
BETWEEN:-
1. SMT KHATOON BAI VEVA RAPHEEK, AGED
ABOUT 55 YEARS,
2. AFSAR S/O SHRI RAFEEQ, AGED ABOUT 30
YEARS,
3. SABIR S/O SHRI RAFIQ, AGED ABOUT 34 YEARS,
4. RIHANA D/O SHRI RAFIQ, AGED ABOUT 32
YEARS,
5. SHAHRUKH S/O SHRI RAFIQ, AGED ABOUT 27
YEARS,
6. SALMAN S/O SHRI RAFIQ, AGED ABOUT 28
YEARS,
7. CHOTI D/O SHRI RAFIQ, AGED ABOUT 25 YEARS,
ALL R/O GRAM BIRAWALI BARAI A B ROAD
GWALIOR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI H.K.SHUKLA - ADVOCATE)
AND
JAGATNARAYAN THAPAK S/O LATE SHRI T P THAPAK,
AGED ABOUT 61 YEARS, OCCUPATION: KRASHI, R/O
RIVERVIEW COLONY MORAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI GAURAV MISHRA - ADVOCATE)
This appeal coming on for admission this day, the court passed the
following:
2
ORDER
Heard on I.A. No.4284/2023, which is an application under Section 5 of
Limitation Act, for condonation of delay in filing the appeal.
2. Appeal is stated to be barred by 1756 days.
3. Upon perusal of the application, it is apparent that there is no
explanation for the delay caused in filing the appeal. In para 3 of the application,
it is stated that since appellants were not in knowledge of passing of ex-parte
judgment and decree, they could not file second appeal in time. Even after
passing of impugned judgment and decree dated 14/7/2018, when they came to
know about passing of ex parte judgment and decree, they immediately
preferred an application under Order IX Rule 13 read with Section 151 of CPC
for setting aside ex parte judgment and decree after passing of impugned
judgment and decree which has been dismissed on 1/7/2023 and thereafter
immediately this second appeal has been preferred/ With the aforesaid skeleton
application, the formidable delay of 1756 days is explained and it is prayed that
the delay may be condoned and the appeal may be heard on merits.
4. Respondent filed reply to the application and vehemently opposed the
prayer and prayed for dismissal of the appeal as barred by limitation.
5. The aforesaid submissions made in the application do suggest that
instant case is a classic case where the appellants in fact is in deep slumber for
long period of 1756 days or more. Explanation offered by way of the instant
skeleton application under section 5 of the Limitation Act can hardly be said to
be one showing sufficient cause preventing the appellants to file Second Appeal
within limitation. The appeal is hopelessly time barred by 1756 days. Moreover,
the averments contained in the application for delay are hypothetical and vague
as a perusal of impugned judgment itself makes it clear that it was passed in
presence of counsel for the appellants, hence, sufficient cause has not been
shown for delay in filing the appeal.
6. Law as regards scope and jurisdiction of the Court in the matter of
condonation of delay under section 5 of the Limitation Act is well settled by the
Hon'ble Apex Court and the various High Courts.
7. In the case of Ramlal Vs. Rewa Coalfields Ltd. AIR 1962 SC 361,
Hon. Supreme Court in para 7 has held as under:-
"7. In construing Section 5 (of the Limitation Act)
it is relevant to bear in mind two important
considerations. The first consideration is that the
expiration of the period of limitation prescribed
for making an appeal gives rise to a right in favour
of the decree-holder to treat the decree as binding
between the parties. In other words, when the
period of limitation prescribed has expired the
decree-holder has obtained a benefit under the law
of limitation to treat the decree as beyond
challenge, and this legal right which has accrued to
the decree-holder by lapse of time should not be
light-heartedly disturbed. The other consideration
which cannot be ignored is that if sufficient cause
for excusing delay in shown discretion is given to
the court to condone delay and admit the appeal.
This discretion has been deliberately conferred on
the court in order that judicial power and
discretion in that behalf should be exercised to
advance substantial justice."
8. Hon. Supreme Court in a recent decision Maniben Devraj Shah Vs.
Municipal Corporation of Brihan, Mumbai, (2012) 5 SCC 157 has held in
para 24 as under:-
"24. What colour the expression "sufficient
cause" would get in the factual matrix of a given
case would largely depend on bona fide nature of
the explanation. If the Court finds that there has
been no negligence on the part of the applicant and
the cause shown for the delay does not lack bona
fides, then it may condone the delay. If, on the
other hand, the explanation given by the applicant
is found to be concocted or he is thoroughly
negligent in prosecuting his cause, then it would be
a legitimate exercise of discretion not to condone
the delay."
9. In view of the aforesaid authoritative pronouncement of law as regards
object, scope, extent, limitation and the discretionary power to be exercised
under section 5 of the Limitation Act laid down by the Hon'ble Apex Court, this
Court is of the view that the delay of about 1756 days caused in filing the appeal
by the appellants is miserably barred by limitation as neither sufficient cause is
shown in the application seeking condonation of delay nor the same is found to
be to the satisfaction of this Court.
10. Accordingly, I.A. No.4284/2023 seeking condonation of delay in
filing the Second Appeal is rejected. Consequently, Second Appeal is also
dismissed. No order as to costs.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
JPS/-
JAI PRAKASH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4cfb9e38ce14f
SOLANKI
cbb05b9522a, postalCode=474001, st=Madhya Pradesh,
serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01433EBD48AE4
F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI
Date: 2024.05.06 10:26:15 +05'30'
