Madhya Pradesh High Court
Pammi @ Pramila vs Annudas on 21 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 21 st OF MAY, 2024
MISC. APPEAL No. 4120 of 2022
BETWEEN:-
PAMMI @ PRAMILA W/O SANTOSH UBNARE, AGED
ABOUT 42 YEARS, OCCUPATION: HOUSEWIFE
RAMNAGAR BETUL DISTRICT BETUL M.P. (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI A.S. HUSSAIN - ADVOCATE )
AND
1. ANNUDAS S/O NANDLAL KHATARKAR, AGED
ABOUT 60 YEARS, UMARIYA TEHSIL AMLA
DISTRICT BETUL M.P. (MADHYA PRADESH)
2. JAMAN W/O LAXMAN JHARBADE, AGED ABOUT
70 YEARS, OCCUPATION: CASTE MEHRA
HATNAPUR TEHSIL MULTAI DISTRICT BETUL
M.P. (MADHYA PRADESH)
3. THE STATE OF M.P. THROUTH COLLECTOR
BETUL BETUL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAMASHANKAR YADAV - ADVOCATE FOR RESPONDENT NO. 1)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Appeal has been filed being aggrieved with the order
passed by the 2nd Additional Judge, Multai District Betul in MJC No.11/22 by
which the appellant's application under Order 9 Rule 13 of CPC was not
entertained as the application under Section 5 of Limitation Act was dismissed.
2. The appellant's case in nutshell is that one Annu Das (brother of the
appellant) filed a civil suit regarding the agricultural land for declaration and
injunction. An ex parte decree was passed on 31-08-2016, by which the plaintiff
suit was partly decreed.
3. The appellant filed an application under Order 9 Rule 13 of CPC
before the trial Court on the ground that after the notice in the suit, she appeared
before the court and filed the written statement. She has engaged counsel Shri
Ramesh Kumar Suryavanshi and he was pursuing her case before the court but,
in time the Presiding Officer of the court transferred and the court was lying
vacant. On that counsel for the appellant has advised her that she is not required
to be present in the court. He will seek adjournments and when the Presiding
Officer will be posted in the Court, he will call her and so she was not
contacting her counsel and not coming to the court. On 23-09-2019, she got a
notice of SDO Revenue, Multai. On inquiry, it was found that the plaintiff has
got an ex parte decree. On 30-09-2016, she applied for the certified copy of the
judgment and decree and got the certified copy on 04-10-2019. She also came
to know that her counsel was not present so, the case was proceeded ex parte.
If the counsel has informed her, she would have appeared before the Court. She
was not informed either through mobile or letter. Thus, due to bonafide
reasons, she could not appear before the Court and due to mistake of the
counsel she should not be punished.
4. The appellant has filed an application under Section 5 of the
Limitation Act for condoning the delay in filing the appeal.
5. On the application, the trial Court issued the notice to the respondents
and called for the record.
6. After hearing the parties, the trial Court had dismissed the application
under Section 5 of Limitation Act vide order dated 02-08-2022. Hence, this
appeal.
7. Learned counsel for the appellant has submitted that there is no fault
on the part of the appellant. She being a lady and rustic villager, she was not
well versed with the provisions of law and therefore, she engaged a counsel and
the counsel had assured the appellant that he will inform her when her presence
will be required and the learned counsel has not informed her. So, for the
mistake of learned counsel for the appellant, the appellant should not be
punished and the trial Court has not considered this fact. Hence, the impugned
order be quashed and the delay in filing the application under Order 9 Rule 13
of CPC be allowed and the case be decided on merits.
8. I have gone through the record of Civil Suit No. 40-A/15 and the
record of the MJC No. 11/22.
9. It is clear from the record of the Civil Suit that the notice was properly
served on the appellant/defendant No. 2 and the appellant appeared personally
before the trial Court. She has engaged Shri Ramesh Kumar Suryavanshi as
counsel and it is also clear that on the some dates of hearing, she was
personally appearing before the Court. She had also filed written statement. So,
it is clear from the record that the notice was properly served upon the appellant
and she has appointed counsel on her behalf to represent before the Court. It is
also clear that the Court was vacant on 12-01-2015 and the date fixed for
hearing on 13-03-2015 but, as per order dated 20-04-2015, the case was
transferred to the Court of IInd Additional District Judge, Multai and after that,
from 19-09-2015 till 17-08-2016, counsel Shri Ramesh Kumar Suryavanshi was
appearing and pursuing the case of the appellant and thus,ground stated in the
application has not been supported the facts of the case.
10. In the meantime,the appellant never tried to consult her counsel or to
appear before the court to pursue her case. It is the duty of the parties to keep
updated from the proceedings of the Court and the only ground that the
advocate has not informed her, no party get certificate not to remain present
and pursue his/her case before the court concerned. In this case, it is worth
mentioning that the decree was passed on 31-08-2016 and till 23-09-2019 for
more than 3 years, she has not contacted her counsel nor appeared before the
Court and searched about her case. Thus, it is clear that the appellant herself
was negligent and on that basis the trial Court has rightly dismissed the
application under Section 5 of Limitation Act.
11. The trial Court has considered the above facts in detailed order.
12. The order of the trial Court is affirmed. No perversity is found in the
order. Hence, the appeal is dismissed at the motion stage.
13. With the copy of the order, the record of the trial Court be returned
back.
(DEVNARAYAN MISHRA)
JUDGE
PG
