IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE HIMANSHU JOSHI

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ON THE 14 OF OCTOBER, 2025 MISC. APPEAL No. 2551 of 2014 DELAN YADAV AND OTHERS Versus SMT. PUSHPALATA AND OTHERS Appearance:

Shri Ashok Kumar Jain - Advocate for the appellant.

Shri Umesh Tripathi - Advocate for the respondent no.3.

ORDER The present Misc. Appeal has been preferred under the provisions of Order 43 Rule 1 (D) of the Code of Civil Procedure challenging the order dated 07/10/2014 passed by IXth Additional District Judge, Jabalpur in MJC No.50/2014 (Delan Yadav & Others Vs. Smt. Pushpalata & Others), whereby an application under Order 9 Rule 13 of the CPC for setting aside ex-parte judgement and decree along with an application under Section 5 of the Limitation Act dated 17/09/2009 passed in CS No.2-A/2009 was rejected on the ground of non-explanation of delay.

2. The facts of the case in nutshell are that the present Misc.

Appeal has been preferred at the instance of the original applicants and also original defendants of Civil Suit bearing no. C.S. No.2-A of 2009 (Smt. Pushpalata & Others vs. Delan Yadav & Others). The respondents in the present proceedings are the original plaintiffs. The facts of the suit are not of much relevance for deciding the present lis, except that a plaint was filed by the plaintiff for declaration of sale deed dated 10/01/2008 as null and void.

3. The suit was instituted on 29/09/2009 and after service of summons the defendants have entered their appearance in the suit. On 11/05/2009, an ex-parte proceedings were drawn against the defendants due to non-appearance of the defendants. Ultimately, the suit was decided ex-parte vide judgment and decree dated 17/09/2009. This judgment and decree was challenged by filing an appeal bearing no. 797/2009 on 18/12/2009. This appeal was subsequently withdrawn vide order dated 23/06/2010 with liberty to approach trial Court by filing an application under Order 9 Rule 13 CPC for setting aside ex-parte order.

4. The appellants, herein, have preferred an application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree dated 17/09/2009 on the ground that during the pendency of the suit, an oral compromise has been done between the plaintiffs and defendants and the plaintiffs have assured the defendants to withdraw the suit. But, the plaintiffs have committed cheating upon the defendants by not withdrawing the suit, which resulted into ex- parte judgment and decree dated 17/09/2009 against the appellants. The appeal filed thereafter was withdrawn with liberty to approach trial Court. The learned trial Court vide order dated 07/10/2014 has rejected the application on the ground of limitation, which gave rise to the cause of action for filing the present miscellaneous appeal.

5. Learned counsel for the appellants has critized the order impugned on the ground that there is serious lapse on the part of the Court below in rejecting the application on the ground of delay. The delay caused is between 05/07/2010 to 23/07/2010 which is only 18 days delay. It is argued that the provision of Section 14 of the Limitation Act has not been appreciated before passing the order impugned. It is also argued that before passing the impugned order, the averments of the suit and the application are required to be considered. Lastly, it is submitted that while deciding the application for limitation, the merits of the case are also required to be considered and the appellants are having good prime-facie case in their favor.

6. The appellants, herein, are relying upon Section 14 of the Limitation Act, 1963 for deciding the present issue. Section 14 of the Limitation Act reads as under:

Exclusion of time of proceeding bona fide in Court without jurisdiction. —

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision