THE HIGH COURT OF MADHYA PRADESH
FA-508-2016
(KARODI AHIRWAR Vs SMT. DHALLAN)
6
Jabalpur, Dated : 30-01-2018
Shri Ashok Lalwani, learned counsel for the appellants.
Shri Aman Chourasia, learned counsel for the respondent.
Heard on IA No.8345/16, an application for condonation of
delay in filing the appeal.
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As per office report appeal is filed barred by 1408 days.
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Respondent filed an application under Section 19 of the
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Guardian and Wards Act against the appellants.
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The appellants did not appear before the trial Court. They were
proceeded ex-parte vide order dated 23.4.2012. Trial Court by the
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impugned order awarded the payment of maintenance @ Rs.3,000/- p.
m. in favour of respondent.
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Against the aforesaid order appellants filed an application for
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setting aside ex-parte order under Order 9 Rule 13 of CPC that was
dismissed. Thereafter another application was filed for same relief
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before the trial Court that was also dismissed.
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Appellant in present application pleaded that he was pursuing
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the remedies before the trial Court under Order 9 Rule 13 of CPC for
setting aside ex-parte order. Appellants prayed that the time which
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has been spent by them in pursuing aforesaid remedies be excluded.
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This Court granted time vide order dated 17.1.2018 on the
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request of the counsel for the appellants to file the copies of the
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applications filed order 9 Rule 13 of CPC before the trial Court and
copies of the orders passed by the trial Court on that applications. No
such documents have been filed.
Learned counsel for the appellants has contended that the
appellants were pursuing the remedy before the trial Court available to
them under the law. Hence, in accordance with the provisions of
Section 14 of Limitation Act, the time spent by them in prosecuting
the proceedings before the trial Court be excluded in regard to delay in
filing the appeal.
On merits of the case learned counsel for the appellants has
submitted that the order passed by the trial Court is contrary to the
provisions of Section 18 of Guardian and Wards Act.
There is inordinate delay of 1408 days in filing the appeal. The
appellants were negligent through out. They did not appear before the
trial court. They were proceeded ex-parte, thereafter they filed an
application for setting aside ex-parte order under Order 9 Rule 13 of
CPC. They have not pleaded in the present application that when
aforesaid application was dismissed by the trial Court. Thereafter,
they again filed an application under Order 9 Rule 13 of CPC that was
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also dismissed. This fact has also not been pleaded specifically in the
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application that when second application was dismissed by the trial
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Court.
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During the course of arguments learned counsel for the
appellants informed the court that first application was dismissed on
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10.9.2013 while learned counsel for the respondent submitted that
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after dismissal of first application second application filed under Order
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9 rule 13 of CPC was not maintainable.
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Appellants did not file copies of the orders passed on the
applications filed by them under order 9 Rule 13 of CPC. The conduct
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of the appellants shows that they deliberately did not appear before the
court in order to save themselves from payment of maintenance to the
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respondent and after inordinate delay of 1408 days this appeal has
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been filed. Hence, in our opinion, there is no merit in the application
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filed by the appellants for condonation of delay in filing the appeal.
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Learned counsel for the appellants has also argued the case on
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merit. In our opinion, the trial Court has considered the merits of the
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case while awarding the maintenance. At the time of consideration of
application filed under Section 5 of Limitation Act for condonation of
delay merits of the case could not be considered. However, prima-
facie we are satisfied that the impugned order passed by the trial Court
is within its jurisdiction. Hence, we do not find any merit in this
application.
In this view of the matter, IA No.8345/2016 is hereby
dismissed. Consequently, this appeal is also dismissed.
S.K. GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
Digitally signed by KRISHAN KUMAR CHOUKSEY
Date: 2018.02.01 11:07:34 +05’30’
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