IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA nd ON THE 2 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 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 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. Thus, the explanation given by the appellant with regard to condonation of