IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL rd ON THE 3 OF NOVEMBER, 2023 SECOND APPEAL No. 886 of 2015 BETWEEN:-

SAVITRI BAI (DEAD) THROUGH LRS:-

ALAKH NIRANJAN SON OF JEEVAN LAL DAHARWAR, AGED ABOUT 57 YEARS, OCCUPATION- AGRICULTURIST, R/O VILLAGE MAJHAPUR, POST KANKA, TAHSIL WARASEONI DISTRICT BALAGHAT (M.P.)

.....APPELLANT (BY SHRI ASHISH RAWAT - ADVOCATE )

AND VINOD KUMAR S/O SHIV NARAYAN, AGED ABOUT 52 YEARS, VILL. GARRA TEH. WARASEONI DISTRICT BALAGHAT (MP)

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

ORDER

Heard on I.A No.7040/23, which is an application under Order 22 rule 3 CPC for substitution of legal representatives of sole appellant-Savitri Bai.

2. From the date of death mentioned in the application and supported by affidavit and death certificate, the application is within limitation hence, I.A No.7040/23 is allowed/disposed off with the direction to learned counsel for the appellant to carryout necessary amendment substituting the proposed legal representative in place of appellant today itself.

Signature Not Verified Signed by: PRASHANT

3. Also heard on I.A No.10285/15, which is an application under Section 5 of the Limitation Act for condonation of delay in filing of the second appeal.

4. Registry has reported this appeal to be barred by 6140 days.

5. Supporting the averments of the application, learned counsel for the appellant submits that after passing of the judgment and decree on 14.07.1998 the appellant obtained certified copy of the judgment from the Court below and visited the Advocate Shri Subodh Pandey of Jabalpur and handedover the case file to him for filing the second appeal in the month of October, 1998. At that time, the memo of second appeal was prepared by the counsel, copy of which has been annexed by the counsel along with the application. It is submitted that the appellant was under impression that the second appeal has been filed in the month of October, 1998 by the counsel and thereafter, also upon making enquiry from the counsel, the appellant remained under impression that the matter is pending before the High Court. It is submitted that thereafter the appellant visited Jabalpur and enquired about the matter in the month of July 2015 and came to know that the second appeal has not been filed before the High Court by the counsel. Thereafter the appellant again applied for the certified copy of the order passed by the Court below on 29.07.2015 and obtained certified copy on 01.08.2015 and visited Jabalpur and engaged another counsel for filing the second appeal. Learned counsel for the appellant submits that the sufficient cause mentioned in Section 5 of the Limitation Act should be considered liberally and in the aforesaid circumstances, the delay being based on boanfides of the appellant, deserves to be condoned.

6. Heard learned counsel for the appellant and perused the application and the record available.

7. From perusal of the averments made in the application, it is clear that the Signature Not Verified Signed by: PRASHANT appellant engaged Shri Subodh Pandey as counsel for filing the second appeal in the year 1998, however, no documentary evidence regarding engagement of counsel is not available on record and even no affidavit has been filed of Shri Subodh Pandey Advocate, who allegedly filed the appeal before the High Court. In what circumstances, the appeal was not filed, has also not been mentioned. There is no averment in the application that the appellant had sought any explanation from the counsel Shri Subodh Pandey for non-filing of the second appeal before the High Court. It is also not mentioned in the application that when the appellant came to know in the month of July 2015 that appeal has not been filed by the duly engaged counsel, then what action she had taken. It is also not mentioned that earlier counsel Shri Subodh Pandey returned the brief to the appellant or not.

8. Perusal of