Madhya Pradesh High Court
Permanand Deivedi vs Klashinath Badai on 22 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P.No.6086/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22nd OF MAY, 2024
MISC. PETITION No. 6086 of 2023
BETWEEN:-
PERMANAND DEIVEDI S/O SHRI BAIJNATH
DWIVEDI, AGED ABOUT 50 YEARS,
OCCUPATION: AGRICULTURE VILLAGE
KHADDIKHURD TEHSIL PS RAMPUR
NAIKIN DISTRICT SIDHI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI S.M.SHUKLA - ADVOCATE )
AND
KASHINATH BADAI S/O SHRI MANSUKH
LAL BADAI R/O KHADDIKURD TAHSIL
RAMPUR NAIKIN DISTRICT SIDHI
(MADHYA PRADESH)
.....RESPONDENT
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under Article 226 of Constitution of India has
been filed seeking the following reliefs :-
"1] That, this Hon'ble Court may kindly be
pleased to issue writ in the nature of Certiorari
and set aside impugned order dated 24/08/2023
passed by learned Additional Collector Sidhi
[M.P.] [Annexure P/1], and order dated
21/04/1988 passed by the tahsildar. passed in
Revenue Case No. 42/A-19/1987-1988, in the
interest of justice.
II] That, this Hon'ble court may kindly be pleased
to remand the case with direction to learned court
below to decide the case on merit. In the interest
of justice.
III] That, this Hon'ble Court may kindly called
entire record.
IV] That, any other relief which this Hon'ble
Court may deemed fit and proper looking into the
facts and circumstance of the case."
2. It is submitted by counsel for petitioner that the petitioner had
preferred a revision before the Additional Collector, Sidhi, which
was registered as Case No.10/Revision/2022-23 along with an
application under section 5 of Limitation Act. The revision was filed
against the order dated 21.4.1998 passed by Tahsildar, Gopadbanas,
District Sidhi in Revenue Case No.42/A-19/1987-88.
3. It is submitted by counsel for petitioner that the petitioner had
specifically taken a stand that on 15.1.2022 the villagers had
organized a public function on the land in dispute. It was objected by
the respondent no.1 alleging that since he is in possession of the said
land being the holder of a Patta from the Government, therefore, the
public function cannot be organized. Thereafter, the petitioner came
to know that Patta was granted on 21.4.1988. Thus, it was submitted
by counsel for petitioner that once the petitioner came to know about
the Patta on 15.1.2022, therefore, the petitioner had made out a
sufficient ground for condonation of delay as per the provisions of
section 17 of Indian Limitation Act. However, the application under
section 5 of Limitation Act was rejected and consequently the appeal
was dismissed as barred by time.
4. Heard the learned counsel for the petitioner.
5. The petitioner has not filed a copy of the application filed
under section 5 of Limitation Act. Accordingly, he was requested to
point out as to whether the petitioner had ever made an averment in
the application that whether public functions were organized prior to
15.1.2022 and any objection was raised by the respondent no.1 or
not?
6. In absence of the application, the counsel for the petitioner was
unable to point out such fact.
7. Section 17 of Limitation Act reads as under :-
"17. Effect of fraud or mistake.--(1)
Where, in the case of any suit or application for
which a period of limitation is prescribed by this
Act,--
(a) the suit or application is based
upon the fraud of the defendant or
respondent or his agent; or
(b) the knowledge of the right or
title on which a suit or application is
founded is concealed by the fraud of any
such person as aforesaid; or
(c) the suit or application is for
relief from the consequences of a mistake;
or
(d) where any document necessary
to establish the right of the plaintiff or
applicant has been fraudulently concealed
from him,
the period of limitation shall not begin to run
until the plaintiff or applicant has discovered the
fraud or the mistake or could, with reasonable
diligence, have discovered it; or in the case of a
concealed document, until the plaintiff or the
applicant first had the means of producing the
concealed document or compelling its
production:
Provided that nothing in this section shall
enable any suit to be instituted or application to
be made to recover or enforce any charge
against, or set aside any transaction affecting,
any property which--
(i) in the case of fraud, has been
purchased for valuable consideration by a
person who was not a party to the fraud
and did not at the time of the purchase
know, or have reason to believe, that any
fraud had been committed, or
(ii) in the case of mistake, has been
purchased for valuable consideration
subsequently to the transaction in which
the mistake was made, by a person who
did not know, or have reason to believe,
that the mistake had been made, or
(iii) in the case of a concealed
document, has been purchased for
valuable consideration by a person who
was not a party to the concealment and,
did not at the time of purchase know, or
have reason to believe, that the document
had been concealed.
(2) Where a judgment-debtor has, by fraud or
force, prevented the execution of a decree or
order within the period of limitation, the court
may, on the application of the judgment-creditor
made after the expiry of the said period extend
the period for execution of the decree or order:
Provided that such application is made within
one year from the date of the discovery of the
fraud or the cessation of force, as the case may
be."
8. Thus, in order to take advantage of section 17 of Limitation
Act, the appellant must plead and prove that in spite of exercise of
due diligence, he could not discover the fact on an earlier date. In
absence of such an averment, the limitation cannot be condoned on a
bald statement made by the petitioner that since he came to know
about the impugned order on a particular date, therefore, the period
of limitation is required to be condoned.
9. Furthermore, there is another aspect of the matter. The order
passed by the Tahsildar Gopandbanas, District Sidhi on 21.4.1988
was an appealable order.
10. The counsel for the applicant also could not point out as to
how the revision before the Additional Collector, Sidhi was
maintainable.
11. Be that whatever it may be.
12. Since the Additional Collector, District Sidhi did not commit
any mistake by rejecting the application filed by the petitioner under
section 5 of Limitation Act; thereby refusing to condone the delay of
35 years, this Court is of considered opinion that no case is made out
warranting interference.
13. The petition fails and is hereby dismissed.
(G.S.AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2024.05.24 17:18:48 +05'30'
