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MOHAN SINGH & ORS v NAVAB ALI & ORS - CFA Case No. 01228 of 2006  RD-RJ 1302 (26 May 2006)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
S.B. CIVIL FIRST APPEAL NO.1228/2006DR(J)
Mohan Singh & Ors. Vs. Navab Ali & Ors.
Against judgment & decree dated 20.11.2004 passed by Additional
District Judge No.2, Bikaner in
Civil Suit No.64/2003(Navab Ali &
Anr. Vs. UIT Bikaner & Ors.)
DATE OF JUDGMENT: 26th May 2006.
HON'BLE MR.JUSTICE SATYA PRAKASH PATHAK
Mr. Sanjeet Purohit for appellants.
Mr. S.L. Jain )
Mr. D.D. Chittlangi ) for respondents.
BY THE COURT:
By this appeal, a challenge has been made to the judgment and decree dated 20.11.2004 passed by learned Additional District Judge No.2, Bikaner in Civil Suit No.64/2003 (Nawab Ali and Anr. Vs.
UIT, Bikaner and Ors.).
Since, the present appeal has been filed after inordinate delay of 378 days, an application under Section 5 of the Limitation Act has been filed along with an affidavit of appellant Mohan
Singh. Notice of the application under Section 5 of the Limitation Act has been issued to the respondents. Service is complete, however, no reply to the application has been filed.
Heard learned counsel for the parties on the application moved under Section 5 of the
The contention of learned counsel for the appellants is that ex-parte decree has been passed by learned trial Judge on 20.11.2004 against them and they came to know about passing of the judgment and decree for the first time on 02.06.2005 and they on the very same day applied for certified copy of the judgment and decree which was delivered to them on 06.06.2005 and thereafter an application under Order 9 Rule 13 CPC was filed before the learned trial Judge for setting aside the ex- parte decree. The said application was rejected on 22.10.2005 and against which S.B. Civil Misc.
Appeal No.1537/2005 was filed before this Hon'ble
Court and same was dismissed on 25.01.2006, therefore, now the present appeal has been filed and it is prayed that the time consummated by the appellants in relation to filing of application under Order 9 Rule 13 CPC and thereafter the matter was argued before this Court, that time should be condoned and the appeal may be treated as one filed in time.
It has further been contended that a meritorious case should not be dismissed on technical grounds and the Court while considering the matter on limitation should take a lenient view. It has also been contended that before the learned trial court, Advocate who was conducting the case of the appellants did not intimate about the status of the case and has not contested the case properly, therefore, for the fault of the
Advocate the appellants should not be penalised.
On the other hand, learned counsel for the respondents has contended that in the trial court appellants were represented by their Advocate and continuously for one reason or other, adjournments were sought on behalf of the appellants and ultimately the court after three years, when the lawyer pleaded no instructions proceeded ex-parte against the defendants. The learned trial court recorded the evidence of the plaintiff and decreed the suit, therefore, it cannot be said that the defendants were not aware about the status of the case. It has next been contended that false allegations have been made against the Advocate that he did not take care of the case of the defendant-appellants. It has also been stated that their application under Order 9 Rule 13 CPC has already been dismissed by the learned trial court and an appeal preferred against that order has also been dismissed by this court on 25.01.2006, therefore, there is no merit in the present appeal.
It has also been contended that simply by making a mention that on a particular date the appellants came to know about the judgment and decree passed is not sufficient to condone the delay. It has also been contended that the appeal has been preferred after long lapse of time, therefore, it requires to be dismissed as barred by limitation.
I have considered the submissions made before me.
It is to be seen that in para No.2 of the application u/s. 5 of the Limitation Act, it has been stated that the counsel engaged by the appellants has failed to properly represent their case before the trial court and without any intimation to the defendant-appellants, no instruction was pleaded. In para No.3 of the application, it is stated that for the first time the appellants came to know about the judgment and decree dated 20.11.2004 on 02.06.2005 and on the very same day they applied for certified copy of the said judgment and the same was received on 06.06.2005 and thereafter they moved an application under Order 9 Rule 13 CPC before the learned trial court which was rejected on 22.10.2005 and an appeal being S.B. Civil Misc. Appeal NO.1537/2005 preferred before this Court was dismissed on 25.01.2006, therefore, the present appeal should be treated to be one filed in time.
The grounds stated in the application, in my humble opinion, are not sufficient and reasonable for condoning the delay in the matter.
The allegations are made against the Advocate, who was contesting the case before the learned trial court. A perusal of the order passed by the learned trial court on the application moved under
Order 9 Rule 13 CPC in Civil Misc. Application
No.94/2005, copy of which has been placed before me, clearly reveals that continuously for 2 ½ years opportunities were given to the appellants but they failed to file written statement and ultimately the learned trial court observed in para No.7 of the order as under :
" 2001 2003 28.2.03 " % '% ( +
- / '% + - / 2 " , % % " 6 % 14.3.03 " %: ' % ' / / ' / , . . 1 % 26.5.04 " % " ; 6 / ' /
" " 6 ' % ;+ % 18.3.04 " ' %. 2 6 " " % = " , + ' + - /
" '% %: . . 2 ; ' %. / / ' %. " / " " 6 ' % /
" '% / ' / / " '% ' %. 2 / D '% ' %. 3 6 / 6 % '% , : ' % + % /
( + - '% + % '% ' + ' 2003 ' + " ( ' 6 ( - +
( , - ; '% ( + % L / ; 6 6 " L 6 '% , N 6 +
" ( " L ; '% ', ; D
" ' D '% " %
It is to be seen further that this order passed on 22.10.2005 has been upheld by this Court in S.B. Civil Misc. Appeal No.1537/2005 and the appeal has been dismissed vide order dated 25.01.2006.
It further appears from the impugned judgment and decree dated 20.11.2004 that after framing of necessary issues, no evidence whatsoever was produced on behalf of the defendants and ultimately the learned trial court decreed the suit on 20.11.2004. The present appeal which has been preferred is barred by limitation and same has been filed after long delay of 378 days. The grounds that appellants' counsel did not inform them is not sufficient for condoning the delay.
The Division Bench of this Court in the cases relied on by the learned counsel for the respondents viz. Municipal Board, Shahpura Vs.
Shaukat Hussain & Anr, 2004 (5) WLC (Raj.) 321,
District Probation and Social Welfare Officer,
Sikar Vs. Kanhaiyalal, WLC (Raj.) UC 712 and State of Rajasthan & Ors. Vs. Smt. Kanta Devi & Ors. 2005
(2) CDR 953 (Raj.)(DB) has observed that the delay should be properly explained in the application moved under Section 5 of the Limitation Act. In these cases, averments made related to the advocate, however, affidavit of the advocate was not filed, therefore, it was held that in absence of affidavit of the advocate whatsoever was stated in the applications concerned with the advocate was not required to be accepted. In the above cases, it has been held that the delay in preferring an appeal is required to be condoned provided the appellant satisfies the court that the delay was genuine and it was explained in a satisfactory manner. It is not essential that the delay of each and every day is required to be explained but at the same time in absence of sufficient reason, delay in preferring the appeal is not required to be condoned. It has also been held that it is the duty of parties to contact their advocates and if the parties to the litigation fail to contact their advocates and the advocates do not intimate about the stage of the case, then, that has not been considered to be sufficient reason to condone the delay.
In view of two reasons stated by the appellants in the application moved under Section 5 of the Limitation Act that his counsel did not inform about the stage of the case and did not conduct the case properly in the facts and circumstances of the present case cannot be considered to be sufficient reason for condoning the delay in the matter.
The impugned judgment under challenge when perused along with the order passed on the application moved under Order 9 Rule 13 CPC clearly establishes the fact that defendant-appellants were negligent throughout in the trial court's proceedings. Even then, adjournments were given to them several times but they did not file any written statement and no evidence whatsoever was adduced on their behalf. The learned trial court after trial of the suit as the appellants failed to file written statement decreed the suit. However, after passing of the impugned judgment and decree immediately on knowledge about it, as stated in the application, they moved an application under
Order 9 Rule 13 CPC after obtaining certified copy of the judgment and decree but the learned trial court did not find favour with the appellants and rejected the said application. The matter has already been examined by this court in appeal preferred by the appellants.
In view of above facts and circumstances of the case, I do not find sufficient reason to condone the delay in preferring the appeal.
In the result, the application moved under
Section 5 of the Limitation Act as well as the appeal, both are dismissed.
(SATYA PRAKASH PATHAK),J.
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