BABULAL Vs. HIRA KALAR

JUDGEMENT

(1.) This civil revision has been preferred by the applicants/defendants challenging the order dtd. 7/3/2019 passed by 3rd Additional District Judge, Umariya in miscellaneous civil appeal No.05/2014 affirming the order dtd. 29/9/2012 passed by 1st Additional Civil Judge Class-II, Umariya in MJC No.08/2010.

(2.) As narrated by learned counsels appearing for the parties, the short facts of the case are that a civil suit was filed by the respondents 1-5 for declaration of title and permanent injunction, which was decreed ex-parte on 26/9/1995 and for setting aside the ex-parte judgment and decree, an application under Order 9 Rule 13 CPC by the defendants/applicants was filed on 29/7/1997 which was dismissed in default on 25/8/2005. For restoration of the aforesaid application under Order 9 Rule 13 CPC, an application under Order 9 Rule 9 CPC was filed on 5/10/2005 with delay of about 10-12 days, which was dismissed on 29/9/2012 for want of application under Sec. 5 of the limitation Act. Consequently, the defendants filed miscellaneous appeal against the order dtd. 29/9/2012, which has been dismissed by the impugned order dtd. 7/3/2019 holding it to be not maintainable.

(3.) Learned counsel for the applicants/defendants submits that although application under Order 9 Rule 9 CPC was barred by limitation of about 10-12 days but before dismissing the application under Order 9 Rule 9 CPC on the ground of delay, learned Court below ought to have granted one more opportunity to cure the default of non filing the application under Sec. 5 of the limitation Act and in favour of his submissions, he placed reliance on the decision of the Supreme Court in the case of Sesh Nath Singh and Another Vs. Baidyabati Sheoraphuli Cooperative Bank Limited and another (2021) 7 SCC 313 and submits that although explanation was required to be given but in fact, no formal application is required. He further submits that learned appellate Court has also affirmed the order dtd. 5/10/2005 and in addition, just contrary to law laid down by Supreme Court in the case of Jaswant Singh & others Vs. Parkash Kaur & Another (2018) 12 SCC 249; Full Bench of this Court in the case of Nathu Prasad vs. Singhai Kapurchand AIR 1976 MP 136 and Division Bench of this Court in the case of Pooranchan Mulchand Jain Vs. Komalchand Beniprasad Jain AIR 1962 MP 64, held the misc. appeal to be not maintainable.