Rajasthan High Court - Jaipur
Babu Lal vs Mst Panchi on 14 February, 2022
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 289/2013
Babu Lal
----Appellant
Versus
Mst Panchi
----Respondent
For Appellant(s) : Ms. Anita Agarwal, Advocate For Respondent(s) : Mr. Sanjay Yadav, Advocate for Mr. Rajeev Surana, Advocate HON'BLE MR. JUSTICE PRAKASH GUPTA Order 14/02/2022 Matter comes up on application (No.2/2021) under Order 22 Rule 4 read with Section 151 CPC for taking legal representatives of deceased respondent Mst. Panchi on record; application (No.1/2022) under Section 5 of the Limitation Act for condoning the delay in filing application under Order 22 Rule 4 CPC; application (No.2/2022) under Order 22 Rule 9 read with Section 151 CPC for setting aside the abatement; and application (No.3/2022) under Section 5 of the Limitation Act for condoning the delay in filing application under Order 22 Rule 9 read with Section 151 CPC.
Reply to the application under Section 5 of the Limitation Act for condoning delay in filing the application under Order 22 Rule 4 CPC, reply to the application under Section 5 of the Limitation Act for condoning the delay in filing the application under Order 22 Rule 9 read with Section 151 CPC, reply to the (Downloaded on 24/12/2022 at 12:52:04 PM) (2 of 3) [CSA-289/2013] application under Order 22 Rule 4 read with Section 151 CPC and reply to the application Order 22 Rule 9 read with Section 151 CPC have also been filed by the respondent.
Learned counsel for the respondent submits that the respondent Mst. Panchi had died on 04.12.2020 and an application under Order 22 Rule 10A read with Section 151 CPC was filed on 28.01.2021 and a copy whereof was also supplied in the office of the counsel for the appellant and signature dated 28.01.2021 was obtained. In this view of the matter, application under Order 22 Rule 4 read with Section 151 CPC and application under Order 22 Rule 9 read with section 151 CPC are time barred and thus, the appeal deserves to the dismissed as having been abated.
Learned counsel for the appellant has opposed the same and submits that a copy of the application dated 28.01.2021 under Order 22 Rule 10A CPC was neither supplied to her nor a copy thereof was received by any of her associate / clerk. He further submits that this fact is quite evident from the order dated 16.11.2021 passed by the Co-ordinate Bench of this Court, from which it is clear that she specifically stated before the Court that copy of the application had not been received in her office. She sought time to file an affidavit in that regard. Pursuant thereto she filed an affidavit wherein also, she mentioned that the aforesaid application was never supplied to her. It was also mentioned that the alleged signatures on the application are not of her or any one in her office. However, to rebut the same no counter affidavit has been filed by the respondent.
Taking into consideration the facts and circumstances of the case and more particularly in view of the fact that no counter- affidavit has been filed by the respondent to rebut the averments (Downloaded on 24/12/2022 at 12:52:04 PM) (3 of 3) [CSA-289/2013] made by the counsel for the appellant in her affidavit, the applications under Section 5 of the Limitation Act are allowed. Accordingly, delay in filing applications under Order 22 Rule 4 read with Section 151 CPC and application under Order 22 Rule 9 read with section 151 CPC is condoned. Abatement, if any, is set aside and legal representatives of deceased respondent - Panchi as mentioned in para No.2 of the application (No.2/2021) are taken on record subject to payment of cost of Rs.5,000/- to be deposited with Rajasthan State Legal Services Authority and on production of its receipt in the Registry, failing which the applications shall be deemed to have been dismissed without further reference to the Court.
Amended cause title which has already been filed is taken on record.
(PRAKASH GUPTA),J S.N.69 (Downloaded on 24/12/2022 at 12:52:04 PM) Powered by TCPDF (www.tcpdf.org)