Madhya Pradesh High Court
Shakeel Qureshi vs Intjamiya Committee Masjid Mirjapur ... on 19 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:12224
1 SA-590-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF JUNE, 2025
SECOND APPEAL No. 590 of 2010
SHAKEEL QURESHI
Versus
INTJAMIYA COMMITTEE MASJID MIRJAPUR GHASMANDI
GWALIOR
Appearance:
Mr. Amin Khan - Advocate for the appellant.
Mr. Arshad Ali M. Haque - Advocate for the intervenor.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against
the judgment and decree dated 09.09.2010 passed by Eleventh Additional
District Judge (Fastrack), Gwalior in MJC No.127/2010 arising out of
judgment and decree dated 28.04.2009 passed by Seventh Civil Judge, Class-
II, Gwalior in RCSA No.1A/2009.
2. The facts necessary for disposal of the present appeal in short are
that respondent filed a suit for eviction and recovery of arrears of rent. Notice
of the said suit was served on the appellant who entered appearance before
the trial Court and filed his written statement. Thereafter, he was proceeded
ex-parte and, accordingly on 28.04.2009, ex-parte decree was passed.
Thereafter, appellant preferred an appeal under Section 96 of CPCon
24.05.2010 along with an application under Section 5 of Limitation Act. By
order dated 09.09.2010, application filed under Section 5 of Limitation Act
NEUTRAL CITATION NO. 2025:MPHC-GWL:12224
2 SA-590-2010
was rejected. As a consequence thereof, civil appeal was also dismissed as
barred by time.
3. Being aggrieved by the said judgment and decree, appellant has
preferred this appeal challenging the order rejecting the application under
Section 5 of Limitation Act.
4. It is submitted by counsel for the appellant that the appellant was not
served with the notice of the suit and he never filed any written statement
and, therefore, appellate court committed material illegality by rejecting the
application filed under Section 5 of Limitation Act.
5. Heard counsel for the appellant.
6. This Court by order dated 19.11.2024 has admitted this appeal on
the following substantial question of law :-
"(i) Whether, the First Appellate Court has erred in
dismissing the application filed by the appellant/defendant under
Section 5 of the Limitation Act for condonation of delay caused in
filing the first appeal without cogent reasons?"
7. The moot question for consideration is as to whether appellant has
made out a sufficient cause for condonation of delay in filing the regular civil
appeal or not ?
8. Application under Section 5 of Limitation Act, which was filed by
the appellant before the appellate court along with his memo of appeal, reads
as under :-
"आवेदन आधीन धारा ५ िलिमटे शन ए ट
NEUTRAL CITATION NO. 2025:MPHC-GWL:12224
3 SA-590-2010
ीमान जी,
ाथ । अपीला ट शक ल कुरै शी का आवेदन िन नानुसार
सेवा म तुत है :-
१) यह क ित ाथ । र पोडे ट ने बड़ चालाक से यायालय को
धोखा दे कर ाथ के व ए सपाट ड ा कर ली है ।
२) यह क, उसी चालाक से ित ाथ भार शी ता म ाथ से
दक
ु ान खाली कराने का भरसक य कर रहा है ।
३) यह क, ाथ के पास द वानी मुकदमे क कभी कोई तामील
नह ं आई है ।
४) यह क ाथ को ित ाथ क चालाक का ान तब हुआ जब
इजरा का नो टस ाथ के पास आया जसक तार ख संभवतः १४।३।२०१०
या १५/३/२०१० है ।
५) यह क, ाथ ने फ़ौरन अधीन थ यायालय म
हा जर होकर आप पेश कर द है य क ाथ तथा उसके प रवार के
भरण पोषण का केवल यह दक
ु ान एकमा साधन है ।
६) यह क, ाथ ने दनांक ३०/३/२०१० को ह नकल का आवेदन
पेश कर दया जसका रसीद न बर ८३३६। २०१० है तथा बुक न बर
१६३७८ है । नकल रसीद संल न है ।
७) यह क, न ल िमलते ह ाथ ने वतमान अपील पेश कर द
है ।
८) यह क, ाथ ने उ दे र जान बूझकर नह ं क है , दे र
स भावना पर आधा रत है तथा मा कये जाने यो य है ।
६) यह क, ाथ के पास द वानी मुकदमे क कभी कोई
तामील नह ं आई है न ाथ के कह कोई ह ता र है ।
अतः ीमान जी से िनवेदन है क ाथ । अपीला ट का
आवेदन वीकार कया जाकर डले कंडोन फरमाई जाकर ाथ क अपील
अ दर याद वीकार कये जाने क आ ा दान क जावे ।"
NEUTRAL CITATION NO. 2025:MPHC-GWL:12224
4 SA-590-2010
9. This application contains the admitted signature of the appellant.
From the plain reading of this application, it is clear that it was merely stated
by the appellant that the respondent is trying to get him evicted as early as
possible and the summons of the suit were never served. The entire
application is silent about the filing of the written statement before the trial
Court.
10. It is the case of the appellant that the summons were never served
on the appellant and he never filed the written statement and it appears that
somebody got the written statement filed through some lawyer who was
never engaged by him. Accordingly, the record of the trial Court was
perused. From the ordersheets of the trial Court, it appears that on
26.08.2008, Shri S.L. Gupta, Advocate, appeared on behalf of the appellant
and he filed his vakalatanama. The service report is also on record which
contains the signatures of the appellant. The service report as well as the
admitted signatures of the appellant were shown to the counsel for the
appellant. He also submitted that both the signatures appear to be identical.
Even in exercise of power under Section 73 of the Evidence Act, this Court
has compared the signatures of the appellant. In the service report as well as
on the application filed under Section 5 of the Limitation Act, the signatures
appear to be identical. Thus, it is clear that the appellant was served with the
notice of the suit. The written statement of the appellant is also on record and
the signatures on the written statement also appear to be identical to the
admitted signatures of the appellant on the application filed under Section 5
of the Limitation Act. Thus, it is clear that not only the appellant was served
NEUTRAL CITATION NO. 2025:MPHC-GWL:12224
5 SA-590-2010
with the notice of the suit but he had also appeared before the trial Court and
had filed his written statement.
11. Contents of the application filed under Section 5 of the Limitation
Act have already been reproduced. In the entire application, appellant did not
dispute the fact that the service report does not contain his signatures. The
application is completely silent with regard to the filing of the written
statement by the appellant and it is not the case of the appellant that written
statement does not contain his signatures.
12. Under these circumstances, this Court is satisfied that the service
report of summons issued to the appellant in the civil suit as well as the
written statement which was filed by the appellant before the trial Court bear
the signatures of appellant. Therefore, it is clear that the appellant was served
with the notice of the suit and he had appeared before the trial Court and had
also filed his written statement.
13. Thus the appellant had failed to make out sufficient cause for
condonation of delay in filing the appeal and the appellate court did not
commit any mistake by rejecting the application filed under Section 5 of the
Limitation Act.
14. This appeal has not been admitted on any other substantial
question of law. Accordingly, the substantial question of law framed by this
Court is answered in the negative.
15. As a consequence thereof, judgment and decree dated 09.09.2010
passed by Eleventh Additional District Judge (Fastrack), Gwalior in MJC
No.127/2010 and judgment and decree dated 28.04.2009 passed by Seventh
NEUTRAL CITATION NO. 2025:MPHC-GWL:12224
6 SA-590-2010
Civil Judge, Class-II, Gwalior in RCSA No.1A/2009 are hereby affirmed.
16. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
