Madhya Pradesh High Court
Dharamdas Yadav vs Harnarayan Yadav on 21 January, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:2813
1 SA-607-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 21st OF JANUARY, 2025
SECOND APPEAL No. 607 of 2024
DHARAMDAS YADAV AND OTHERS
Versus
HARNARAYAN YADAV AND OTHERS
Appearance:
Shri S.K.Singh, Advocate for the appellants.
Ms. Sanjana Sahni, Advocate for the respondent No.1.
Shri Rajendra Rajpoot, PL for the respondent No.4-State.
ORDER
Heard on IA No.5755/2024, an application under Section 5 of the
Limitation Act for condonation of delay of 234 days in filing the present
appeal.
Learned counsel for the appellants submits that the appellants are
labourers and they were working in Delhi. On 14.7.2022, trial Court passed
the judgment and on 17.4.2023, first appellate Court disposed of the appeal.
The appellants were not informed about the judgments passed by the trial
Court and the appellate Court by the concerned counsel. It is only when the
respondents filed execution proceeding and tried to dispossess them, then
they approached the concerned Advocate and obtained certified copy of the
judgment. Thereafter, appeal was filed. The delay in filing the appeal is not
intentional one. It is a bonafide. It is urged that it is well settled law that while
deciding the application under Section 5 of the Limitation Act, the Court
NEUTRAL CITATION NO. 2025:MPHC-JBP:2813
2 SA-607-2024
should adopt a liberal approach in condoning the delay. In this connection,
learned counsel for the appellants has relied upon the judgment dated
18.9.2013 passed by Coordinate Bench of this Court in the case of Ram
Khelawan Brahmin Vs. Smt. Maya Devi Agnihotri and others (SA
No.270/2011). It is also urged that from 2022 to 2023, there was Covid-19.
On above grounds, it is prayed that the delay be condoned.
On the other hand, learned counsel for the respondent No.1 submits
that in the instant case, before the trial Court, the appellants were ex-parte.
After filing of written statement and at the stage of plaintiff's evidence, they
never appeared before the trial Court. Further, it is submitted that the first
appeal was also filed with delay and the present second appeal has also been
filed after a delay of 234 days. Thus, both the appeals have been filed with
delay and in both the appeals, common ground has been taken by the
appellant that concerned counsel did not inform to them about the judgments
passed by the trial Court and the first appellate Court. Therefore, in the
instant case, liberal approach cannot be adopted and hence delay cannot be
condoned. Learned counsel for the respondent No.1 has relied upon the
judgment of the Hon'ble Supreme Court in the case of Lingeswaran etc. Vs.
Thirunagalingam, reported in 2022 LiveLaw (SC) 227, and the order of the
Coordinate Bench of this Court passed in the case of Durga Prasad Vs.
Prabhudayal Sonkiya in MA No.1315/2024.
Heard the learned counsel for the parties and perused the record.
It is correct that while condoning delay, a liberal approach is to be
adopted, but in the instant case, perusal of the record of the case reveals that
NEUTRAL CITATION NO. 2025:MPHC-JBP:2813
3 SA-607-2024
appellants were proceeded ex-parte before the trial Court on 17.1.2022 and
thereafter they did not appear before the trial Court and trial Court passed the
judgment on 14.7.2022. Further, it is also evident from record of the case that
appellants filed first appeal after a delay of 190 days and this second appeal
has been filed after a delay of 234 days. It is also evident from record of the
case that common ground has been taken by the appellant that concerned
counsel did not inform them about the judgments passed by the trial Court as
well as appellate Court. Thus, common ground has been taken for condoning
the delay.
So far as the judgment relied upon by the counsel for the appellants in
the case of Ram Khelawan Brahmin (supra) is concerned, the fact of the
aforesaid case is quite distinguishable from the case of present case and the
principles laid down in the said case do not help the appellants.
Considering the factual position as mentioned in the preceding paras,
the delay in filing the present appeal cannot be condoned. Accordingly, IA
No.5755/2024 is rejected.
Resultantly, the present second appeal stands dismissed as time barred.
Appeal filed by by appellants is disposed off accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
Ansari
