Madhya Pradesh High Court
Pooran S/O Mulla (Dead) Thr. Its Legal ... vs Khushali on 9 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 9 th OF MAY, 2024
MISC. APPEAL No. 5648 of 2019
BETWEEN:-
POORAN S/O MULLA (DEAD) THR. ITS LEGAL HEIRS
SMT. MEENA W/O SHRI POORAN, AGED ABOUT 34
YEAR S, VILL. SUMAWALI TEHSIL JAURA, DISTRICT
MORENA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI J.S.KAURAV - ADVOCATE)
AND
1. KHUSHALI S/O SHRI DAYARAM
2. NEETU S/O LAXMAN GURJAR
3. RAMDEEN S/O SHRI NARAYAN SHARMA (DEAD)
THROUGH LRs NEEKERAM S/O SHRI RAMDEEN
SHARMA, AGED ABOUT 62 YEARS,
4. RAMDEEN S/O SHRI NARAYAN SHARMA (DEAD)
THR SHRINIWAS S/O SHRI RAMDEEN SHARMA,
AGED ABOUT 52 YEARS,
5. RAMDEEN S/O SHRI NARAYAN SHARMA (DEAD)
THR RAMKUMAR S/O SHRI RAMDEEN SHARMA,
AGED ABOUT 50 YEARS,
6. RAMDEEN S/O SHRI NARAYAN SHARMA (DEAD)
THR KAMLA S/O SHRI RAMDEEN, AGED ABOUT
55 YEARS,
7. RAMDEEN S/O SHRI NARAYAN SHARMA (DEAD0
THR PRAYAG DEVI W/O SHRI RAMDEEN, AGED
ABOUT 78 YEARS, (NAME DELETED) AS PER
ORDER DATED 27/2/2024
ALL R/O VILLAGE SUMAWALI, TAHSIL JAURA,
DISTRICT MORENA (MADHYA PRADESH).
2
.....RESPONDENTS
(NONE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Appellant/plaintiff has filed this appeal under Order XLIII Rule 1 sub
Clause (T) of CPC being aggrieved by order dated 23/7/2019 passed in MJC
No. 300876/2016 by Second Additional Judge to the Court of District Judge,
Morena (ADJ Court Jaura), district Morena; whereby, application preferred by
the appellant under Order XLI Rule 19 CPC has been rejected.
2. It is the submission of learned counsel for the appellant that husband
of appellant-Meena namely Pooran filed a suit for declaration and permanent
injunction in respect of suit land. The said suit was dismissed on 19/3/2004.
Judgment and decree dated 19/3/2004 was challenged in civil appeal vide Civil
Appeal No. 8-A/2004 which was dismissed on 14/2/2006 being barred by time.
In between husband of appellant died and judgment and decree passed by first
Appellate Court was challenged before this Court in S.A.No. 504/2006. Vide
order dated 18/11/2014, the appeal was allowed condoning the delay occurred
in filing the first appeal before the first Appellate court with cost of Rs. 2,000/-
and while setting aside the judgment and decree dated 14/2/2006, first appeal
was restored and date of appearance was fixed as 17/12/2014. As the appellant
is an illiterate lady, it is alleged that due to lack of knowledge of the date of
appearance, she could not appear,therefore, a writ petition vide W.P.No.
49/2016 was filed by appellant for extension of time to deposit the cost of Rs.
2,000/-, which stood allowed and time was extended and a further cost has
been imposed and limitation was extended up to 30/6/2016; however, since the
establishment of ADJ Court at Jaura has been changed, the file was transferred
from Morena to Jaura of which appellant was having no knowledge and
therefore, again she could not appear on the fixed date and therefore, she
moved an application on 18/6/2016 for depositing the cost of Rs. 2,000/-;
however, again the appeal was dismissed on account of non-appearance of the
counsel as well as party and when appellant came to know about this fact,she
immediately filed an application for restoration of the appeal on 3/8/2016 ;
however, vide impugned order same was dismissed.
3. It is further submitted that non-appearance of appellant was bona fide
and learned Court below erred in passing the impugned order.
4. None appeared on behalf of the respondents to oppose the prayer.
5.Considering the fact that appellant is an illiterate rustic ladyand hailing
from remote area, therefore, due to faults of counsel having not informed her
about the outcome of first appeal in time, she should not be penalized.
Appellant has been pursuing the case right from the suit up till first appeal and
also second appeal by engaging a counsel. Bona fide of appellant cannot be
doubted. Under the circumstances and in the fitness of things of the case, at a
measure of last indulgence, this Court finds it just and expedient to condone the
absence of appellant and while setting aside the impugned order dated
23/7/2019, the application preferred by appellant under Order XLI Rule 19 CPC
is allowed and Civil Appeal No. 8-A/2004 is restored to its original number
however, subject to payment of cost of Rs. 2,000/- to the respondents on next
date of hearing before the first Appellate court. Let parties to appear before the
first Appellate Court on 31/5/2024.
Looking to the long drawn proceedings, first Appellate Court is directed
to decide the appeal on its own merits in a time bound period without giving
unnecessary adjournments to the parties.
(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=287738d30aabaeda9b10cecdf179cec865c7633f4
cfb9e38ce14fcbb05b9522a, postalCode=474001,
SOLANKI
st=Madhya Pradesh,
serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01
433EBD48AE4F609F108CA8F8DE6B522, cn=JAI PRAKASH
SOLANKI
Date: 2024.05.13 14:34:41 +05'30'
