Rajasthan High Court - Jaipur
Smt. Phooli Devi & Ors vs Mali Ram Sharma & Ors.-Respondents on 16 October, 2014
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Misc. Application No.32929/2007 & S.B. Civil Misc. Application No.389/2008 In S.B. Civil Second Appeal No.914/2007 Smt. Phooli Devi & Ors.-Appellants Versus Mali Ram Sharma & Ors.-Respondents Date of Order-::-16.10.2014 Hon'ble Ms. Justice Bela M. Trivedi Mr. Prahlad Sharma, for applicants-appellants. Mr. Ashok Kumar Choudhary, for respondent/s. ORDER By the Court:-
1. The application being No.32929/2007 has been filed by the applicants under Section 5 of the Limitation Act seeking condonation of delay occurred in filing the second appeal, and the application being No.389/2008 has been filed by the same applicants under Order XXII Rule 10 of CPC seeking leave to file the second appeal against the judgment and decree dated 16.01.2003 passed by the District and Sessions Judge, Jaipur District, Jaipur (hereinafter referred to as the appellate court) in Regular Appeal No.54/2001, arising out of the judgment and decree dated 29.11.2001 passed by the Civil Judge (Senior Division) Chomu, Jaipur District, Jaipur in Civil Suit No.36/89 (19/96). The said application under Section 5 of the Limitation Act has been resisted by the respondent Nos.1 to 3 by filing the reply.
2. In the instant case, it appears that the original-plaintiff Narayan Lal son of Bhuramal had filed the suit being No.36/89 against the original defendants Kanhaiyalal and the Sub-Registrar, seeking declaration to the effect that the defendant Kanhaiyalal (since deceased) had gone in adoption to one Shri Nathulal son of Shri Onkar in the year 1954-55, and therefore the said Kanhaiyalal had no right in the property of his natural father Shri Bhuramal. The said plaintiff Narayan Lal had also sought permanent injunction in respect of the property in question against the said Kanhaiyalal. The trial court dismissed the suit of the said plaintiff Narayan Lal vide the judgment and decree dated 29.11.2001, against which the original plaintiff Narayan Lal had preferred an appeal before the appellate court. During the pendency of the appeal, the said Narayan Lal expired, and therefore his legal heirs were brought on record, who are the respondent Nos.1 to 11 herein. The said appeal came to be allowed by the appellate court vide the judgment and decree dated 16.01.2003 by declaring that the defendant Kanhaiyalal had no right in the property in question, and he was restrained from transfer or selling or creating any charge over the suit properties. Being aggrieved by the said judgment and decree passed by the appellate court, the applicants-third parties have filed the present appeal alongwith the applications seeking leave to appeal and seeking condonation of delay of about 1630 days.
3. According to learned counsel Mr. Prahlad Sharma for the applicants, though Shri Ramdev, husband of applicant No.1 and father of applicant Nos.2 to 5 had purchased the land in question from Shri Kanhaiyalal through registered sale deed dated 29.07.1991, the applicants were not impleaded as party-defendants in the suit filed by Shri Narayan Lal. According to him, the applicants' father having purchased the property in question had right and interest in the said property, and hence the legal rights of the applicants would be affected by the impugned judgment and decree passed by the appellate court. He also submitted that the applicants were not aware about the suit proceedings, and the appeal proceedings filed by the original-plaintiff Narayan Lal against Kanhaiyalal, and hence the delay occurred in filing the present appeal is required to be condoned in the interest of Justice. However, the learned counsel Mr. Choudhary for the respondent Nos.1 to 3 relying upon the reply contended that the suit was filed by the Narayan Lal in the year 1989, and the property was not sold to the father of the applicants at that time and therefore there was no question of impleading father of the applicants as party defendant in the said suit. He also submitted that the original-plaintiff Narayan Lal having come to know about the sale deed dated 29.07.1991 executed by Kanhaiyalal in favour of the Ramdev, the said Shri Narayan Lal had filed one suit being No.114/91 seeking cancellation of the said sale deed, and that in the said suit, Shri Narayan Lal had specifically mentioned about the pendency of the suit being No.36/89 filed by Shri Narayan Lal against Shri Kanhaiyalal, and therefore the applicants and their father Shri Ramdev had the knowledge about the pendency of the said suit, however they had not made any application for impleading them as party defendant in the suit.
4. Having regard to the submissions made by the learned counsels for the parties, and to the applications and the reply thereon, it appears that the applicants have filed the application seeking condonation of delay of 1630 days occurred in filing the second appeal on the ground that they were not aware about the suit proceedings filed by Narayan Lal, however as transpiring from the reply filed by the respondents, in the suit being No.114/91 filed by Narayan Lal against Ramdev, father of the applicants seeking cancellation of sale deed dated 29.07.1991, executed by Shri Kanhaiyalal in favour of Ramdev, there was specific mention about the pendency of the suit being No.36/89. The said fact has not been controverted by the learned counsel for the applicants. The Court therefore finds substance in the submission made by the learned counsel for the respondents that though the applicants and their father Ramdev were aware about the pendency of the present suit, they did not make any application for impleading them as the party-defendants in the suit. The cause for delay shown by the applicants does not appear to be true.
5. Under the circumstances, the Court is of the opinion that the applicants have failed to justify the gross delay, and therefore the application deserves to be dismissed. Since the delay has not been condoned, the applicants could not be granted leave to appeal also, hence the said application is also deserves to be dismissed.
6. In view of the above, both the applications as well as the second appeal stand dismissed.
(Bela M. Trivedi) J.
R.Vaishnav
41. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Ramesh Vaishnav-Personal Assistan