Madhya Pradesh High Court
Jaykumar Rohara vs Rakesh Kumar Shrivastava on 27 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 SA-1598-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
SA No. 1598 of 2020
(JAYKUMAR ROHARA Vs RAKESH KUMAR SHRIVASTAVA )
Dated : 27-01-2025
Shri Kapil Rohra, Advocate for appellant.
Shri Arish Hyder, Advocate for respondent.
Heard on I.A. No. 8096/2020, which is an application for condonation
of delay in filing of the second appeal.
2. Registry has reported this appeal to be barred by 1014 days.
3. Despite service of notice on the respondent, no reply/counter
affidavit has been filed.
4. Supporting the averments made in the application, learned counsel
for the appellant submits that on the basis of alleged agreement of sale dtd.
29.06.1998 civil suit in question for specific performance was filed on
13.05.2015 which was dismissed even in absence of the appellant/defendant,
but first appellate Court has by impugned judgment and decree, decreed the
suit for specific performance ex parte without taking into consideration the
question of limitation. He submits that because entire sale consideration was
paid on the date of agreement itself, therefore, it being a complete document
of sale, was not admissible in evidence for want of requisite stamp duty
payable on the sale deed and its registration.
5. He submits that although before the first appellate Court notice was
issued to the respondent, but was served on brother of the appellant and even
on the over leaf of summons it is mentioned that the appellant is suffering
2 SA-1598-2020
from ailment and the same thing is also mentioned in the order sheet dtd.
27.10.2016. He submits that in the second appeal also an application under
Order 32 Rule 5 CPC has been filed along with affidavit of wife of appellant
as well as documents relating to mental illness of the appellant, but no reply
to the application has been filed. He submits that from the aforesaid it is clear
that no personal notice was served on the appellant-Jaykumar Rohara and he
being mentally sick, could not remain present before the first appellate Court.
Resultantly, decree of specific performance had been passed.
6. He submits that in the aforesaid circumstances, the appellant could
not get knowledge of the judgment and decree passed by first appellate Court
and the same being a sufficient ground for condonation of delay, the delay
deserves to be condoned.
7. Learned counsel appearing for the respondent orally opposes the
application with the prayer of dismissal of the same.
8. Heard learned counsel for the parties and perused the record.
9. In the present case, on the basis of agreement of sale dtd.
29.06.1998, suit was filed on 13.05.2015, which was dismissed by trial Court
holding thereby that although the agreement is proved, but in the
circumstances when suit has been filed after a period of more than 16 years,
the plaintiff is not entitled for decree of specific performance. In the first
appeal filed by the plaintiff/respondent, although notice was issued to the
appellant, but was served on his brother, who on the date of service of notice
itself stated that his brother is ill and the service report was submitted by the
process server accordingly, but without taking care of the ailment of the
3 SA-1598-2020
appellant and despite informing the same by brother of the appellant, first
appellate Court proceeded further against the appellant. Resultantly, in the
time barred suit for specific performance, decree of specific performance was
passed.
10. In the present case also an application under Order 32 Rule 5 CPC
has been filed by the appellant supported by affidavit annexing medical
documents regarding mental ailment, but neither any reply to the same nor
counter affidavit to the application under Section 5 of the Limitation Act has
been filed on behalf of the respondent/plaintiff. As such, the factum of illness
of the appellant and his unawareness of impugned judgment and decree of
specific performance, remains unrebutted.
11. Resultantly, delay occurred in filing of the second appeal deserves
to be and is hereby condoned.
12. Hence, I.A. No.8096/2020 is allowed and disposed off/closed .
13. List for further consideration in the next week.
(DWARKA DHISH BANSAL)
JUDGE
KPS
