2025:CGHC:14675 Digitally signed by AVANISH KUMAR PATHAK NAFR Date:

2025.04.02

10:31:08 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 158 of 2024

1 - Smt. Nilima Mahakalkar W/o Late Nand Kishore Mahakalkar, Aged About

58 Years R/o Mohba Bazar, Raipur, Tehsil And District-Raipur (C.G.)

------Defendant/Appellant versus

1 - Vikas Jain S/o Late Manak Lal Jain, R/o Gudiyari, Raipur, Tehsil And Dis- trict-Raipur (C.G.) ----(Plaintiff No.1) 2 - Ashok Gelare S/o Shri Mohan Gelare, R/o Sarona Basti, Tehsil And Dis-

trict-Raipur (C.G.) -----(Plaintiff No.2)

... Respondents For appellant : Mr. Ravish Verma, Adv. and Mr. Shiv Kumar Shri-

vastava, Adv.

For Respondents : Mr. Sangeet Kumar Kushwaha and Mr. Sudhan-

shu Upadhyay, Adv.

(Hon’ble Mr. Naresh Kumar Chandravanshi, J)

Order on Board

25/03/2025

1. This appeal has been preferred by the appellant/defendant chal-

lenging the order (Annexure A-1) dated 05-09-2024 passed in Civil MJC No. 53/2022, whereby learned 3^rd Upper District Judge, Raipur (CG) has dismissed the application under Section 5 of the Limitation Act filed by the defendant, consequently application under Order 9 Rule 13 read with Section 151 of the CPC has also been dismissed.

(hereinafter, parties shall be referred as per their status before the trial Court)

2. Facts of the case in nutshell are that, respondents/plaintiffs filed civil suit against the appellant/defendant seeking possession by way of specific performance of an agreement of sale dated 2-7- 2016, by which, the defendant has allegedly agreed to sell her land measuring 7765 square feet bearing Khasra No. 786/1 situated at village Jarvay @ Hirapur, P.H. No. 103, RNM, Raipur, Tahsil and District Raipur (CG) (henceforth referred to as ‘suit land’) to the plaintiffs, which was registered as Civil Suit No. 123A/2016. After service of notice to the defendant, she entered her appearance through her counsel in civil suit, subsequently, she/her advocate remained absent, therefore, ex-parte judgment and decree (Annexure A-2) was passed against defendant on 25-11-2017. It is pleading of the defendant that, after ex-parte judgment and decree, one notice board was affixed on the suit land on 28-7-2022, then only, defendant came to know about said ex-parte judgment and decree. Thereafter, she filed application seeking certified copy of relevant documents along with judgment and decree, on 1-8-2022, which was received by her on 5-8-2022. Thereafter, she filed application under Order 9 Rule 13 read with Section 151 of the CPC along with application under Section 5 of the Limitation Act, on 12-9-2022. Learned trial Court declined to condone the delay in filing application for setting aside ex-parte judgment and decree and rejected the application under Section 5 of the Limitation Act and consequently, application under Order 9 Rule 13 read with Section 151 of the CPC was also dismissed vide impugned order.

Hence, this appeal.

3. Learned counsel for the appellant/defendant would submit that, in aforesaid civil suit, notice was allegedly served twice upon her nephew Ashish Rai and niece Akanksha Mahakalkar respectively, but they are neither permanent resident of the house of defendant nor they are family members of the defendant. He further submits that, one Pranav Rai, Adv. had allegedly filed Vakalatnama on behalf of defendant, but she had neither engaged that counsel nor she had signed Vakalatnama in his favour to represent her in aforesaid civil suit. Even Vakalatnama filed by Adv. Pranav Rai was containing forged signature of defendant. Such forgery committed against the defendant itself shows that, she was not aware about pendency of the civil suit and she, for the first time, came to know about the impugned judgment and decree on 28-7-2022, thereafter, she filed application to obtain certified copy of the relevant documents, which she received on 5-8-2022 and thereafter application under Order 9 Rule 13 read with Section 151 of the CPC along with application under Section 5 of the Lim