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Rajasthan High Court · body

2003 DIGILAW 1177 (RAJ)

Suwati Wife of Shri Mali Ram v. Sarla Kanwar

2003-08-21

S.K.KESHOTE

body2003
Honble KESHOTE, J.–The matter is placed on the board on the application filed by the petitioner under section 5 of the Limitation Act. The revision petition is barred by 58 days. (2). Heard the learned counsel for the parties on the application as well as on the merits of the revision petition and perused the contents thereof. (3). Challenge has been made in this revision petition by the defendant petitioner to the order dated 28th of August, 2000 of the learned Additional District Judge No. 1, Sikar in Civil Miscellaneous Case No. 10 of 1999 to the extent where it declines to order for restoration of the possession of the suit premises. (4). The suit has been filed by the plaintiff non-petitioners for eviction of the non-petitioners No. 6 to 8 from the suit premises i.e. the shop. The suit was decreed on 26th of March, 1998. The defendant petitioner filed an application under Order 9 Rule 13 of the CPC. She also prayed for restoration of the possession of the suit premises. After hearing the parties, the learned trial court under its impugned order held that the application under Order 9 Rule 13 of the CPC is not correct and treating it to be an application under Section 151 of the CPC the ex parte decree has been set aside. It was declared to be wholly inoperative, invalid and illegal as it relates to the defendant petitioner. (5). As regards to the prayer made for restoration of possession, the learned trial court ordered that in case it is established that the defendant petitioner after death of her husband continued in possession on the suit premises as a tenant till 6th of April, 1999, she will have absolute right to file the criminal case against the owner of the premises Smt. Sarla Kanwar and her other associates, who have taken the possession of the suit premises. She has also been given liberty to take appropriate civil proceedings against these persons in the matter. The learned trial court further held that in case it is proved by the petitioner that after 1991 she continued in the suit premises as tenant, she shall be entitled for the possession of the suit premises. (6). It is not in dispute that the possession of the suit premises has been taken in pursuance of the decree by the landlord. (6). It is not in dispute that the possession of the suit premises has been taken in pursuance of the decree by the landlord. In the facts of this case the learned trial court has not committed any illegality not to order for restoration of the possession of the suit premises to the defendant-petitioner. She has to establish that she continued as tenant and in possession of the suit premises after death of her husband Maliram @ Mala Ram who is stated to have died in September, 1991. This case does not fall under any of the clause (a), (b), (c) of sub-section (1) of Section 115 of the CPC. (7). As I do not find any merit in the revision petition itself, no useful purpose will be served to condone the delay made in filing thereof. Accordingly, the application filed under Section 5 of the Limitation Act is dismissed. Consequent upon the dismissal of the application under Section 5 of the Limitation Act, the revision petition is also dismissed as barred by limitation. The learned trial court is directed to decide the suit, out of which the revision petition arises, within a period of six months from the date of receipt of the copy of this order.