State Of Madhya Pradesh And Others vs Deceased Tejumal @ Tejmal Through Lrs. Sapna And Others

Heard on I.A. no. 4202/2019, which is an application for condonation of delay of 720 days in filing the present MCC.

2 The applicants have filed the present application under Order 22 Rule 9 read with 151 of CPC for setting aside the abatement. The applicants had submitted a second appeal no. 217/2004 against the respondents challenging the order dated 16/10/2003 passed in F.A. no. 5-A/2003 by learned Vth ADJ, Fast Track, Ratlam thereby the said appeal was duly admitted on 01/07/2004. During pendency of the said second appeal, the respondent Teju @ Tejmal died on 30/03/2017 therefore, it was necessary for the applicant to move an application for bringing LRs of respondent on record, but the said steps could not be taken within limitation, therefore, this application has been filed for setting aside the abatement along with an application for condonation of delay. In the said application filed by the respondent for condonation of delay, the respondent has stated that Tejmal died on 30/03/2017, thereby I.A. no. 2941/2017 was submitted by legal heirs of Tejmal on 04/05/2017 and necessary steps were taken by the applicant/ State for taking legal heirs of Tejmal on record. There is some delay in filing this application, therefore, delay be condoned.

3 Learned counsel for the applicant submits that no legal heir of respondent Tejmal was taken by the applicant on record. It will not be out of place to mention here that during the said period, the then Officer-in-Charge ( SDO, Ratlam), Shri Sunil Jha was transferred and Smt Neha was appointed as nest Officer-in-Charge. It is pertinent to note that the newly appointed OIC inadvertently failed to comply with the formalities in the matter, thereby on 23/10/2017, again due to administrative convenience and division of work, Smt.Neha was transferred and Mr. Anil Bhana was appointed as Officer-in-Charge ( SDO, Ratlam) in the matter, thereby, when the said matter came into the knowledge of the said OIC, he pursued to get necessary approvals with regard to requisite authority to take necessary steps in the matter, but unfortunately, he was also transferred and Shri Praveen Kumar Phoolpagare was appointed as SDO, Ratlam on 18/07/2018. Shen he resumed the work and settled on the said post, he was transferred and Shri Rahul Namdeo Ghote was appointed as SDO, Ratlam on 01/08/2018. Again when the then SDO Rahul Namdev Ghote was about to resume the work and pursue the take necessary steps in the matter, unfortunatelym, he was again transferred and Shri Praveen Kumar Phoolpagare was again appointed as SDO, Ratlam on 01/01/2019. Shri Praveen Kumar Phoolpagare being on temporary appointed as such during the said period loking after the local urgent adminstration work inadvertently could not pursue the matter and take necessary steps for bringing the legal heirs on record. Thereby on 30/04/2019,, Shri Rahul Ghote and Smt. Laxmi Gamad were appointed as SDO (Revenue), Ratlam, thereby after resuming the work and after getting necessary approvals with regard to the authority in the matter, Smt Laxmi Gamad was appointed as OIC in the matter. Smt. Laxmi Gamad resumed the work. After asuming the charge, she came to know that the said SA no. 217/2014 was dismissed on 12/12/2018 as abated for non-compliance with regard to bring the legal heirs of respondent on record. She, therefore, without further delay applied for certified copy of the order and contacted the Government Advocate in the matter. After the Lok Sabha election and summer vacation of the High Court, the present application is filed before this Court. On the basis of the aforesaid reasons, learned counsel for the applicant / State prays that the delay in filing the present application be condoned and the abatement be set aside.

4 Learned counsel for the respondent has filed their reply and opposes the prayer for condonation of delay in filing the present application and submits that the delay in filing this application is not bonafie one and therefore, the delay be not condoned and the said application be dismissed. He further submits that the applicant is the State Government and they cannot take the ground that due to frequent transfers of OIC, the delay should be condoned. For the sake of reference, he has relied upon the judgment delivered in the case of State of M.P Vs. Gyan Prakash (MCC no. 702/2019). The relevant para of the said judgment reads as under :

"the frequent transfer of OICs cannot be a ground for condonation of delay. The OIC is appointed by the State Government and they are transferred by the State Government itself and thus the State Government cannot take advantage of its own act by saying that since it has transferred its own OIC very frequently, therefore, the OICs could not take any steps in the matter"

5 He further submits that the present application is barred by 668 days. The ground which has been raised in the application filed by the applicant for condonation of delay is that the OIC, after collecting the entire relevant record, had contacted the Government Advocate, therefore, present application has been filed without further delay.

6 Learned counsel for the applicant / State has also relied upon the judgment delivered in the case of State of Nagaland Vs. Lipok AO and others reported in (2005)3 SCC 752. The said judgment would not be applicable in the present case looking to the facts and circumstances of the case of that case.

7 On due consideration of rival contention of both the parties, this case is not fit for condonation of delay of 668 days as not a single document has been filed by the applicant in support of the applicant's contention. If the documents are already available, then the applicant has not stated what documents had been collected by the OIC. The applicant has failed to point out any sufficient reason to condone the delay in filing the present application.

8 In light of the aforesaid discussions, I.A. no. 4202/2019, which is an application for condonation of delay in filing the present MCC is hereby rejected. Consequently, present MCC also stands dismissed.

C c as per rules.