BHAGCHAND YADAV Vs. STATE OF M.P.

JUDGEMENT

(1.) This revision application has been filed at the instance of plaintiff who was arrayed as respondent in First Appeal No. 144/2010 before learned District Judge, Jabalpur.

(2.) The facts necessary for disposal of this revision application lie in a narrow compass. Suffice it to say that a civil suit for declaration and injunction was filed by the plaintiff-present applicant in the Court of Fourth Civil Judge, Class I, Jabalpur which was registered as Civil Suit No. 120-A/2005 and which was decreed in ex parte on 3.3.2005 when defendants 1 and 2 the State of M.P. and Tahsildar, despite they were served did not appear. The said ex parte judgment and decree was assailed by the State of M.P. and Tahsildar by filing First Appeal No. 144/2010 before learned District Judge, Jabalpur arraying present applicant as respondent in that appeal. During the pendency of that appeal, respondents 3 and 4 who are the real brothers of the plaintiff -applicant submitted an application under Order 1 Rule 10 CPC which has also been allowed by the impugned order. Since the appeal of the State Govt. was barred by 2026 days, therefore, an application to condone the delay was filed by the appellants which was vigorously opposed by the present applicant by filing detailed reply which was also supported by an affidavit of plaintiff Bhagchand. The learned Appellate Court allowed the application to condone the delay and further allowed the application under Order 1 Rule 10 CPC filed by the present respondents 3 and 4 by the impugned order. In this manner, this revision application has been filed by the plaintiff-applicant.

(3.) The contention of Shri Anurag Tiwari, learned counsel for the applicant-plaintiff is that in order to allow application under Section 5 of the Indian Limitation Act sufficient reasons are not only required to be assigned but they should also borne out from the record. Merely by saying that sufficient reasons have been assigned and the abnormal delay of 2026 days deserves to be allowed, would not mean that indeed they are sufficient to condone the delay. Learned counsel submits that learned First Appellate Court by holding that sufficient ground has been made out, has acted illegally with material irregularity in exercise of its jurisdiction. By inviting my attention to para 3 of the application to condone the delay which has been filed by quoting wrong provision under Order 41 Rule 3(5) CPC by the respondents no.1 and 2 (appellants in First Appeal), learned counsel submits that the factum of passing of the ex parte judgment and decree came into the knowledge of the State of M.P. and its functionaries only on 1.7.2008 when in the execution case they received notice and, therefore, from the date of the knowledge they have filed the application to condone the delay. Learned counsel further submits that the First Appeal was filed on 16.11.2010.