IN THE HIGH COURT OF MADHYA PRADESH

AT J A B A LP U R

BEFORE

HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

ON THE 2^nd OF MAY, 2023

MISCELLANEOUS APPEAL No. 1077 of 2023

BETWEEN:-

JAGATNARAYAN S/O SHRIRAM PACHORI, AGED ABOUT 65

YEARS, R/O GOLAPURA HARDA, TEHSIL AND DISTRICT-

HARDA (MADHYA PRADESH)

.....APPELLANT

(BY SHRI MOHANLAL SHARMA - ADVOCATE)

AND

1.

SMT. ASHA BAI D/O BHAGWANDAS, AGED ABOUT 70

YEARS, OCCUPATION: W/O LATE SHRI MAHENDRA

KUMAR CHOUDHARI R/O PADAWA, KHANDWA TEHSIL

AND DISTRICT KHANDWA (MADHYA PRADESH)

2.

THE COLLECTOR HARDA, DISTRICT - HARDA

(MADHYA PRADESH)

.....RESPONDENTS

(RESPONDENT NO.2/STATE BY MS. SHANTI TIWARI - PANEL LAWYER )

This appeal coming on for admission this day, the court passed the following:

ORDER

This Miscellaneous Appeal under Order XLIII(1)(c) of C.P.C has been filed

against the order dated 22.08.2022 passed by the Principal District Judge Harda,

District Harda in M.C.C. No.49/2022 by which the application filed by the appellant

under Order 9 Rule 4 of CPC read with Section 151 of CPC and Section 5 of

Limitation Act has been dismissed.

2.

The case of the appellant is that plaintiff/appellant had filed a suit for specific

performance of contract. Since the deficit court fee was not paid and accordingly, by

order dated 30/11/2010 the suit was dismissed in default as well as on the ground of

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non-payment of deficit Court fee.

3.

Thereafter, the appellant preferred an application on 09.10.2021 under Order 9

Rule 9 read with Section 151 of C.P.C for restoration of suit. The application under

Section 5 of Limitation Act was also filed. However by order dated 11.11.2021, the

application filed under Order 9 Rule 9 read with Section 151 of C.P.C was dismissed

as not maintainable. It appears that thereafter on 04/03/2022 the appellant filed an

application under Order 9 Rule 4 read with Section 151 of CPC along with an

application under Section 5 of Limitation Act.

4.

By the impugned order, the application filed under Section 5 of Limitation has

been dismissed. As a consequence thereof, the application under Order 9 Rule 4 CPC

has also been dismissed as barred by time.

5.

Challenging the impugned order passed by the Court below, it is submitted by

the counsel for the appellant that since the counsel for the appellant namely, Nirmal

Joshi had expired in the year 2010 and the father of the appellant also expired in the

year 2020, therefore the appellant was not aware of the order of dismissal of the suit

and accordingly, it is prayed that it is a fit case for restoration of the suit.

6.

Considered the submissions made by the counsel for the appellant.

7.

Unfortunately, the submissions made by the counsel for the appellant are not

correct.

8.

So far as the submission that the counsel for the appellant Shri Nirmal Joshi had

expired in the year 2010 is concerned, the same is factually incorrect. It is clear from

paragraph 11 of the impugned order that the son of Nirmal Joshi had given an

affidavit that Shri Nirmal Joshi had fallen sick even prior to the date of his death i.e.

07/08/2020. Thus, it is clear that Shri Nirmal Joshi expired on 07/08/2020 and not in

the year 2010 as submitted by the counsel for the appellant.

9.

So far as the contention of the counsel for the appellant that the father of the

appellant also died in the year 2020 and since the suit was filed by his father and the

appellant was not aware of the dismissal of the suit, is concerned, the said submission

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(G.S. AHLUWALIA)

JUDGE

is also factually incorrect. The suit was filed by the appellant himself as he himself

had entered into an agreement to sell. The application under Order 9 Rule 9 CPC was

filed by the appellant, application under Order 9 Rule 4 CPC was filed by the

appellant and the present appeal has also been filed by the appellant. Thus, it is clear

that it was the appellant who was completely negligent and did not contact his

counsel for 11 long years and also did not pay the deficit Court fee. Th