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2014 DIGILAW 191 (MP)

Kusuma (Mahila) v. Mahila Bhoori

2014-02-12

M.K.MUDGAL

body2014
JUDGMENT Heard on I.A.No.1904 of 2013 under section 5 of the Limitation Act filed by the appellant/plaintiff for condonation of delay in filing the appeal. The delay is of 690 days. 1. The appellant/defendant No.2 has filed this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 24.2.2011 passed by ADJ, Karera District Shivpuri in Civil Appeal No.18A of 2010 confirming the judgment and decree dated 19.7.2010 passed by the Court of I Civil Judge, Class 2, Karera in Civil Suit No.56A of 2009 whereby, the suit filed by the plaintiff for declaration of title and permanent injunction in respect of the land in dispute was decreed and the counter claim filed by defendant No.2 for declaration of title on 1/5th share was dismissed. In this appeal, the appellant is referred to as “defendant” and the respondent No.1 as “plaintiff''. 2. The admitted facts of the case are that deceased Bhagwanlal was having 1/5th share in the disputed land and defendants No.2 to 4 are his daughters and defendant No.1 is his wife. 3. The facts in brief of the plaint are that the land in dispute bearing Survey No.22,23, 25, 26, 27, 28, 33,43 and 44 total area 7.18 Hectare is situated in village Chirli Tehsil Narwar (hereinafter would be referred to as “disputed land) in which, the deceased Bhagwanlal was having 1/5th share and after his death, his daughters and wife (defendants No.1 to 5) are having 1/25th share each. They are in possession of the land and are cultivating the same. The said land was exparte got mutated by the defendants No.1 and 2 in their favour without impleading plaintiff and defendants No.3 and 4 as party and threatened the plaintiff to dispossess on 10.12.2008. Hence, the suit was filed by the plaintiff against the defendants for issuing permanent injunction restraining them from interfering in the plaintiff's peaceful possession of the land. 4. The defendants No.1 to 4 by filing the joint written statement denied the plaint averments stating that the land in dispute has already been mutated in favour of the defendant No.2 Kusuma and hence, she is owner of the 1/5th share in the property and in possession of it. She was residing with her father Bhagwanlal since very inception and look after him, hence, father Bhagwanlal executed a notarized will dated 9.11.2004 in her favour. She was residing with her father Bhagwanlal since very inception and look after him, hence, father Bhagwanlal executed a notarized will dated 9.11.2004 in her favour. Since, the suit filed by the plaintiff was not maintainable. Therefore, it was prayed that the suit be dismissed. 5. The defendant No.2 by filing counter claim for declaration of 1/5th share in the disputed property submitted that she has been cultivating the disputed land during lifetime of Bhagwanlal. Deceased Bhagwanlal on 9.11.2007 has executed a notarized Will in her favour. She had even performed his last rites. The cause of action for filing this counter claim arises on filing the suit by the plaintiff against her. Hence, it was prayed that the counter claim filed by her be decreed in her favour. 6. After framing of the eight issue, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court decreed the suit of the plaintiff against the defendant/appellant and dismissed the counter claim filed by the defendant No.2 as stated above. 7. Being aggrieved by the judgment and decree passed by learned trial Court, the defendant filed an appeal before the first appellate Court which was also dismissed. Hence, this second appeal has been filed as stated herein above. 8. The defendant/appellant has submitted that first appeal against the judgment and decree dated 19.7.2010 passed by the Court of Civil Judge Class 2 Karera was filed before the Court of Additional District Judge, Karera bearing Civil Appeal No.18A of 2010 and Shri Dhaniram Lodhi Advocate was appointed for pleading it. While the appeal was pending, she met him 5-6 times in 2011. After obtaining the thumb impression on some papers, she was told by him that whenever, she was required, she would be informed. After her appeal was rejected, she was not informed by her advocate about the rejection of the appeal owing to which, she could not file the appeal within stipulated time. On 17.2.2013, she came to know that her appeal had been rejected by the Court on 24.2.2011 when the respondent No.1 tried to dispossess her forcibly from the disputed land. Thereafter, she met her advocate to find out the fate of her appeal, she was told by him on 18.2.2013 that he appeal had been rejected by the Court. On 17.2.2013, she came to know that her appeal had been rejected by the Court on 24.2.2011 when the respondent No.1 tried to dispossess her forcibly from the disputed land. Thereafter, she met her advocate to find out the fate of her appeal, she was told by him on 18.2.2013 that he appeal had been rejected by the Court. Then she obtained a certified copy of the judgment and decree and filed the appeal. The appellant has further stated that she being illiterate could not file the appeal in time, due to her ignorance. The cause of delay is based on bonafide reason, hence, it be condoned. 9. Replying the application, the respondent No.1 has submitted that the cause of delay assigned by the appellant in filing the appeal is totally baseless and bogus as the appeal was decided in presence of the appellant, hence, limitation would run for filing the appeal since it's decision I.e. 24.2.2011. The delay in filing the appeal by 690 days is inordinate. In this regard, no sufficient reason has been given by the appellant as to why the inordinate delay was caused. Besides it, the appellant has failed to produce any reliable evidence in support of the facts stated in the application. The story put-forth by the appellant that she was not informed by her counsel well in time about rejection of the appeal is totally made up. Hence, there is no sufficient ground to condone the delay. 10. The arguments were considered. The cause of delay in filing the appeal has been stated by the appellant that she was not informed by her advocate. However, in this regard, she has not filed an affidavit of her counsel stating that her counsel did not inform her about rejection of the appeal well in time. Apart from it, if the advocate had not informed her and committed negligence why a notice in this regard was not given by the appellant to her Advocate but she did not do that. Under these circumstances, it appears that just to gain sympathy and shirk her negligence, the story of her advocate's negligence has been deliberately fabricated by the appellant. No convincing evidence has been produced by the appellant for condoning the inordinate delay on the grounds pleaded in the application. 11. Under these circumstances, it appears that just to gain sympathy and shirk her negligence, the story of her advocate's negligence has been deliberately fabricated by the appellant. No convincing evidence has been produced by the appellant for condoning the inordinate delay on the grounds pleaded in the application. 11. In the judgment of the case of Pushpa Bai Kushwaha v. Santosh Kumar Gupta, 2012 (4) MPLJ 557 this Court considered the object of section 5 of the Limitation Act has held as under :- “While deciding the application for condonation of delay the Courts do not enjoy the unlimited and unbridled discretionary powers and the discretion of the judicial power should be exercised within reasonable bounds known to the law. The liberal approach would not include whims or fancies; prejudices or predilections. Similarly in the judgment of the case of Balwant Singh (Dead) v. Jagdish Singh and ors. (2010) 8 S.C.C. 685 the Hon'ble Supreme Court has held as under :- “Whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. The Court should not give such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If the Court should take a very liberal approach and interpret these provisions in such a manner and so liberally, irrespective of the period of delay, it would amount to piratically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.” 12. In view of the aforesaid facts and circumstances, this Court comes to the conclusion that the appellant has utterly failed to give adequate reasons for condonation of delay. 13. Hence, I.A.No. 1904 of 2013 is rejected. Consequently, the appeal also stands dismissed as being time barred. Such approach or interpretation would hardly be permissible in law.” 12. In view of the aforesaid facts and circumstances, this Court comes to the conclusion that the appellant has utterly failed to give adequate reasons for condonation of delay. 13. Hence, I.A.No. 1904 of 2013 is rejected. Consequently, the appeal also stands dismissed as being time barred. However, no order as to the costs.