IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA ON THE 4^th OF MAY, 2022 MISC. CIVIL CASE No. 132 of 2021 Between:-

SHANKARLAL S/O PERULAL, AGED ABOUT 40 YEARS, OCCUPATION: AGRICULTURIST VILLAGE DHABLA REWADI, TEHSIL AND DIST UJJAIN (MADHYA PRADESH)

.....APPLICANT (BY SHRI MANISH KUMAR JOSHI, ADVOCATE)

AND

1. SANJAY S/O INDRAPRAKASH OCCUPATION:

VYAPAR 41-42, AZAD NAGAR, DEWAS (MADHYA PRADESH)

2. RATANLAL S/O DATARAM OCCUPATION: NA VILLAGE DHABLA REWADI TEHSIL AND DIST UJJAIN (MADHYA PRADESH)

3. COLLECTOR / DISTRICT MAGISTRATE COLLECTOR UJJAIN (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI VAIBHAB JAIN, ADVOCATE FOR NON-APPLICANT NO.1.

SHRI GOVIND RAI PUROHIT, GOVT. ADVOCATE)

This application coming on for orders this day, the court passed the following:

ORDER

With consent of the parties, matter is finally heard.

This application has been filed for restoration of Second Appeal No.361 of

2014 which has been dismissed for want of prosecution by order dated 22.11.2019. Since the same is barred by time an application bearing I.A. No.592 of 2021 has also been filed under Section 5 of the Limitation Act for condonation of delay in filing the same.

02. It is submitted on part of applicant that on 22.11.2019 the appeal was omitted to be marked by his counsel as a result of which he was not aware of listing of the case hence could not appear when the same was called for on hearing.

Signature Not Verified SAN As there was no requirement of presence of applicant, he was also not present on Date: 2022.05.07 12:20:43 IST that day since he had not been called for by his counsel. Thereafter in the month of March, 2020 lock down was imposed hence he was not in touch with his counsel. Subsequently when he contacted his counsel in November, his counsel checked the case and found out that the same has already been dismissed in default. Thereafter, the applicant promptly filed MCC No.1226 of 2020 on 20.11.2020 for restoration of the second appeal but since the same was defective it was withdrawn on 18.01.2021 with liberty to file properly constituted application after which the instant application has been filed on 29.01.2021. It is hence submitted that there is sufficient reason for condonation of delay in filing the restoration application. 03. The application has been opposed by learned counsel for non-applicant No.1, who has also filed written reply and has submitted that applicant has totally been negligent in prosecution of the case since the very inception. After filing of the appeal eleven adjournments were sought in the same. Due to repeated non- appearance of the applicant, the appeal was dismissed in default on 31.03.2016 after which restoration application was filed which was allowed by order dated 31.01.2017 with a direction for listing the appeal. Thereafter, the applicant again remained absent on the next date but the appeal was adjourned. However, thereafter also the applicant remained absent as a result of which the appeal has been dismissed. The entire conduct of the applicant shows that the same is malafide and he just wants of keep the matter pending and not address the Court on the question of admission. Despite restoration of the appeal once the applicant has still not shown any interest in prosecuting the same. His conduct totally debars him from claiming discretionary relief of restoration of the appeal. Reliance has been placed by him on the decision of this Court in Sulochana Saryu Prasad Pandey vs. Lokmanya Sahkari Griha Nirman Sanstha, [1999(1) M.P.L.J., 431], Ramesh Chandra vs. State of M.P. [2013 (3) M.P.L.J.] 178 and Muniyam vs. Eromia and another [2013 (2) MWN (Civil) 518

04. I have heard the learned counsel for the parties and have perused the record.

05. The reason which has been assigned in the application for condonation Signature Not Verified of delay as well as the restoration application is that the counsel for the applicant SAN Digitally signed by JYOTI omitted to mark the cause list on 22.11