Rajasthan High Court - Jaipur
Kunwar Pal S/O Late Shri Prabhu Datt vs Deendayal S/O Shri Fattelal on 7 April, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Restoration Application No. 206/2019
In
S.B. Civil Restoration Application No. 423/2018
In
S.B. Civil First Appeal No. 157/2010
1. Kunwar Pal S/o Late Shri Prabhu Datt, Aged About 54 Years,
R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
2. Purushottam Urf Tunda S/o Late Shri Prabhu Datt (Deceased),
R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
(Swargwas Date 13.07.2015) Through Legal Heirs And
Representatives
2/1. Smt. Gomti Devi W/o Late Shri Purushottam Urf Tunda, Aged
About 44 Years, R/o Nibhera, Tehsil Roopwas, District
Bharatpur (Raj)
2/2. Devendra S/o Late Shri Purushottam Urf Tunda, Aged About
23 Years, R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
2/3. Somdutt S/o Late Shri Purushottam Urf Tunda, Aged About 19
Years, R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
2/4. Om Dutt S/o Late Shri Purushottam Urf Tunda, Aged About 17
Years, Minor Through Mother Smt. Gomati Devi W/o Late Shri
Purushottam Urf Tunda, R/o Nibhera, Tehsil Roopwas, District
Bharatpur (Raj)
3. Krishan Datt Urf Kalua S/o Late Shri Prabhu Datt, Aged About
43 Years,R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
----Petitioners
Versus
1. Deendayal S/o Shri Fattelal, R/o Nibhera, Tehsil Roopwas,
District Bharatpur (Raj)
2. Prabhudatt S/o Shri Fattelal, R/o Nibhera, Tehsil Roopwas,
District Bharatpur (Raj) (Swargwas Date 15.01.2013 And
Name Deleted In Cause Title Through Vide Order Dated
20.04.2015 In Civil First Appeal No. 157/2010
3. Smt. Khemwati D/o Late Shri Fattelal W/o Shri Suresh Chand,
R/o Suroth, Tehsil Hindon, District Alwar (Raj)
4. Smt. Satyawati D/o Late Shri Fattelal W/o Shri Ramesh Chand,
R/o Mohalla Bhoorameer, Kama, Tehsil Kama, District
Bharatpur (Raj)
----Respondents
For Petitioner(s) : Mr. R.M. Jain
For Respondent(s) : Mr. Sanjay Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
Reportable
07/04/2022
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1. In order to meet out the defect pointed out by office for mismatch of parties in the restoration application No.206/2019 with parties in original restoration application No.423/2018 and first appeal No.157/2010 is concerned, the applicants-appellants have filed an application dated 10.06.2019, purportedly under Section 151 CPC alleging inter alia that applicant No.2 namely Purushottam had passed away on 13.07.2015 during pendency of first appeal. However, this fact was not brought on record and due to inadvertent error, appropriate application to bring the factum of his death and his LRs on record could not be filed in first appeal as also in restoration application No.423/2018.
2. It has been alleged that since thereafter, the first appeal was dismissed on 08.07.2016 due to non-compliance of peremptory order dated 27.04.2016, hence, restoration application No.423/2018, which was filed with some delay. The restoration application too was dismissed due to non-presence of counsel for applicants on 30.04.2019, hence, in second restoration application, the factum of death of applicant No.2 -Purushottam has been brought on record, which fact may be taken on record and his legal representatives may be allowed to be substituted in his place.
3. The present restoration applications arise out of civil first appeal involving the dispute between parties in relation to partition of immovable properties.
4. For reasons mentioned in application and mentioned hereinabove, the delay in filing application is condoned and legal representatives of deceased applicant No.2 are allowed to be substituted, the present restoration application. The applicants have already filed the present restoration application with (Downloaded on 13/04/2022 at 08:56:30 PM) (3 of 10) [CRES-206/2019] impleadment of legal representatives of deceased applicant No.2, hence, office objection stands meet out in view of allowing the application and same is overruled.
5. With consent of counsel for both parties, heard on both restoration applications bearing Nos.206/2019 and 423/2018.
6. It appears from record that applicants have filed one Civil First Appeal No.157/2010, assailing judgment and preliminary decree for partition dated 06.03.2010. The first appeal was admitted for hearing vide order dated 16.04.2010 and notices were issued to respondents. Out of four respondents, notice on respondent No.1-plaintiff Deendayal had been served and he had put in appearance through an Advocate. Proceedings on filing of first appeal were pending at the stage of filing of PF and notices for unserved respondent Nos.3 and 4. On the notice of respondent No.2, report was received that he had passed away. At that stage, this Court passed a peremptory order dated 27.04.2016 for filing PF and notices for unserved respondents and it was observed that if applicant-defendant failed to file required PF and notices, appeal would stand dismissed without further reference to the Court. It appears that applicant-appellant could not file required PF and notices within prescribed time. Accordingly, the first appeal was dismissed on 08.07.2016 pursuant to non-compliance of the peremptory order dated 27.04.2016.
7. Thereafter, applicants filed a restoration application No.423/2018 on 29.06.2018. Since, there was some delay in filing restoration application, separate application under Section 5 of the Limitation Act was also filed seeking condonation of delay. This Court, vide order dated 15.01.2019 issued notices on the application under Section 5 of the Limitation Act before (Downloaded on 13/04/2022 at 08:56:30 PM) (4 of 10) [CRES-206/2019] considering the restoration application of applicant on merits. It appears from record that notices of Section 5 of the Limitation Act were served on respondent No.1-plaintiff and he had appeared before the Court, however, restoration application was dismissed vide order dated 30.04.2019 due to non presence of counsel for applicants. It may be observed that on 30.04.2019, no one appeared on behalf of respondent No.1-plaintiff as well.
8. Since, the restoration application No.423/2018 was dismissed due to non appearance of counsel on behalf of applicants on 30.04.2019, another fresh restoration application No.206/2019 has been filed seeking restoration of their restoration application No.423/2018 which was dismissed due to non appearance. This second restoration application is within time limit.
9. In the present restoration application No.206/2019, counsel for non-applicant No.1-plaintiff has also appeared.
10. The issue falls for consideration by this Court is that whether the application for restoration No.206/2019, seeking to restore the first restoration application No.423/2018 which was filed for beseeching restoration of civil first appeal on its original number for hearing on merits, can be maintained and entertained.
11. In order to dealt with the issue, few relevant provisions of the Code of Civil Procedure, 1908 may be taken its consideration. Order IX of CPC deals with the appearance of parties and consequence of non-appearance. Rule 3 of Order IX provides power to the Court to dismiss the suit in default where neither of the party appears. Rule 4 provides that, where suit is dismissed either under Rule 2 or Rule 3, the plaintiff may either bring a fresh suit subject to limitation or may apply to an order to set aside the (Downloaded on 13/04/2022 at 08:56:30 PM) (5 of 10) [CRES-206/2019] dismissing order, by involving sufficient cause for his non- appearance. Section 141 of CPC stipulates that the procedure provided in CPC in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. As per Section 141 of CPC, provisions of Order IX which is applicable on proceedings of suit are applicable to all other proceedings before any Court of Civil jurisdiction. Proceedings of the restoration application fall within the purview of other proceedings pending before the Court having a civil jurisdiction. Nevertheless, in relation to appeal, additional provisions under Order XLI CPC have been prescribed with regard to dismissal and for restoration of appeal under Order XLI Rule 11, 17 & 19 CPC.
12. In the present case, first appeal was filed under Order XLI Rule 1 CPC read with Section 96 of CPC invoking civil jurisdiction of first Appellate Court under the Code of Civil Procedure. After dismissal of first appeal on account of non-compliance of peremptory order (not on merits), the restoration application to restore the first appeal was filed under Order XLI Rule 19 CPC. Since the restoration application too was dismissed due to non appearance of counsel for applicants, and on that day no one appeared for non-applicant No.1 despite service, hence, the restoration application No.423/2018 was dismissed in default, due to non-appearance of both parties on 30.04.2019. The application seeking order of dismissal dated 30.04.2019, set aside by recalling the same to restore the original restoration, restoration application has been filed within time on 28.05.2019. There is no specific provision under the Code of Civil Procedure to file an application seeking restoration of the restoration application, if the (Downloaded on 13/04/2022 at 08:56:30 PM) (6 of 10) [CRES-206/2019] previous restoration is dismissed in default and due to non- appearance. In the opinion of this Court, in such eventuality, parties may not be left remedy less and cannot be debarred to get adjudicate their dispute on merits by disallowing restoration of the original dispute. Since it is no in dispute from the record that the original restoration application was dismissed in default due to non-appearance of either of the parties, by virtue of Section 141 CPC, such restoration application can be treated as other proceedings pending in the Court of civil jurisdiction and its dismissal falls within scope of Order IX Rule 3 CPC. Hence, another application for restoration, to set aside the dismissal order and to restore back the original restoration application can be held maintainable under Order IX Rule 4 CPC. Nevertheless, in any case, if such provision are treated as inapplicable on the proceedings arise during course of appeal, then that panacea provision of Section 151 CPC becomes applicable. It is no more res integra that where there is no specific provision is available in the Code of Civil Procedure to deal with any situation, the inherent powers of Civil Court enshrined under Section 151 CPC can be invoked, for advancement of justice. The inherent powers enshrined under Section 151 CPC are available to all the Civil Courts either exercising original jurisdiction or appellate jurisdiction.
13. The Supreme Court in case of Manohar Lal Chopra Vs. Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527], has held as under:-
"Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the fact of such (Downloaded on 13/04/2022 at 08:56:30 PM) (7 of 10) [CRES-206/2019] a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognized the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code."
14. The Supreme Court in case of Sangram Singh Vs. Election Tribunal Kotah & Anr. [AIR 1955 SC 425] has observed as under:-
"A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
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15. Counsel for applicant has placed reliance upon judgments passed in case of Mysore Urban Development Authority Vs. S.S. Sarvesh [2019 (1) WLC (SC) Civil 345] and Pralhad Shankarrao Tajale & Ors. Vs. State of Maharashtra through its secretary (Revenue) [2018 (1) WLC (SC) Civil 737].
16. The Supreme Court in case of Mysore Urban Development Authority (supra), has held that the first appeal is a valuable right of appellant and appellant may not be deprived from their valuable right to prosecute the first appeal on merits, accordingly the first appeal was allowed to restore for hearing on merits.
17. In case of Pralhad Shankarrao Tajale (supra), the Supreme Court, brushed aside the hyper technicalities, allowing to restore the review application which was dismissed for non-compliance of Registrar's mandatory order.
18. Now it is one of the relevant factor that the original restoration application was dismissed due to non-appearance of the counsel for applicants, hence, default lies on the part of his advocate. For default of appearance by advocate, bonafide and innocent party may not be allowed to suffer.
19. The Supreme Court in case of Rafiq Vs. Munshilal [(1981) 2 SCC 788] and Ram Kumar Gupta Vs. Har Prasad [(2010) 1 SCC 391] has also observed that if we reject this appeal, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say (Downloaded on 13/04/2022 at 08:56:31 PM) (9 of 10) [CRES-206/2019] nothing more on that aspect of the matter. However, we cannot be a party an innocent party suffering injustice merely because his chosen advocate defaulted.
20. In present case, no malafides are attributed against the applicants neither for moving the first restoration application with delay nor for non appearance in restoration application and moving another application for restoration. Similarly, the another application for restoration has also not been alleged to be suffer from any malafides. The dispute between parties is pertaining to partition of properties. The impugned judgment in first appeal is the preliminary decree for partition.
21. Having considered facts and circumstances of present case mentioned hereinabove and considering relevant provision of law supported with judgments of Supreme Court, this Court is of the considered opinion that the application for restoration No.206/2019, filed for setting aside the order of dismissal dated 30.04.2019, dismissing the original application for restoration No.423/2018 due to non-appearance and default of the counsel for applicants is held maintainable. The applicants have assigned the cause for non-appearance of their counsel on 30.04.2019 due to not marking the case in cause list, which seems to be given, uninteresting and sufficient reason to condone the non- appearance. Otherwise also due to non-appearance of advocate, applicants may not be allowed to suffer. The application has been filed well within time. Thus, application for restoration No.206/2019 deserves to be allowed, hence, allowed. As a consequence the original application for restoration No.423/2018 becomes alive and comes for consideration.
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22. As far as original restoration application No.423/2018 is concerned, the applicant has shown sufficient cause supported with affidavit seeking condonation of delay and to explain the non- compliance of peremptory order. It has been alleged that the peremptory order dated 27.07.2016 in the first appeal was passed in absence of counsel for applicant which could come to knowledge. Further applicant No.2 Purushottam was in regular contact to counsel, since he passed away on 13.07.2015. So the applicants came to know about the dismissal of the appeal only when they inquired. The delay in filing restoration, does not seems to suffer from malafides nor it is exceptional, exhorbitant and unusual. The reasons assigned by applicant have not been denied or opposed by respondent and no reply to the restoration application has been filed. In that view, the delay in filing restoration application No.423/2018 deserves to be condoned and restoration application also deserves to be allowed.
23. Accordingly, both restoration application Nos.206/2019 and 423/2018 stand allowed. The Civil First Appeal No.157/2010 is restored to its original number. The office may proceed accordingly and applicants may proceed to take necessary steps in the first appeal in accordance with law.
24. No order as to costs.
(SUDESH BANSAL),J NITIN /36 & C-1 (Downloaded on 13/04/2022 at 08:56:31 PM) Powered by TCPDF (www.tcpdf.org)