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2005 DIGILAW 2723 (RAJ)

Murli Manohar v. Deu

2005-10-19

N.P.GUPTA

body2005
Judgment N.P. Gupta, J.-Heard learned Counsel for the parties. 2. The registry has reported the appeal to be barred by 45 days. The appeal was filed on 010.2004. The report was made by the Registry, way-back on 110.2004. The application, under Section 5 of the Limitation Act alleges, that the Counsel for the petitioner before the learned trial Court did not intimate about the decision of the suit, and that it was on 05.09.2004, that the Rspondent No. 1 and 2 approached the Tehsildar for correction of the entries, and the Tehsildar informed the petitioner, and invited objections if any. It is then alleged that on 08.09.2004, the petitioner suffered from Peoria, and was advised to take rest from 08.09.2004 to 23.09.2004, it is mentioned that the certificate shall be kept ready for perusal of the Court. According to the application, then on 30.09.2004, the petitioner approached his Counsel, and sought necessary information about the decision of the suit. It is then alleged, that the record of the case is not available in the Court of Gulabpura, as the same is transferred to the record-room at Bhilwara. The petitioner applied for certified copy of the record on 010.2004, and the same was received on 010.2004, and the appeal is filed on 010.2004. This is how the delay, is sought to be explained. 3. In response to the notice issued by this Court, the Rspondents No. 1 and 2 have submitted reply to this application, seriously contesting the same. The stand taken in the reply is, that the stories propounded by the petitioner, in the application under Section 5 of the Limitation Act, are cooked up stories, inasmuch as, the conduct of the appellant, including Rspondents No. 3 and 4 is highlighted by pleading, that the plaintiff s evidence was closed on 010.2003, and thereafter despite several adjournments, no evidence was led, and nothing has been shown, as to why they did not contact their lawyer, since long time. It is also pleaded, that the case was pending in the Court of ADJ, Gulabpura, and the Counsel was Shri Ladu Lal Gurjar, whose office was at Ashind, and he conducted the case at Gulabpura, therefore, it cannot be believed, that the Counsel would continue to conduct the case, going all the way from Ashind to Gulabpura, for such a long time without instructions from their client. It is also pleaded that the Advocate, Ladu Lal Gurjar has a telephone, bearing No. 01480 220601, while there is a PCO in the village of the appellant, apart from the fact, that the appellant works on his tractors, and is working at present in Ziya Gaon (Madhya Pradesh), and is using Mobile Phone, bearing No. 07274218315. Regarding the sickness, it was contended, that certificate is not submitted alongwith the application. It was also alleged, that the appellant was having a workshop in the Ashind in the name of Sudarshan Tractor Repairs, and now is having tractors, while working in Madhya Pradesh, which shows, that the sickness certificate is a fake one. It is also contended, that the appellant was knowing about the progress of the litigation, since the beginning, and it is not correct to say, that he approached the Counsel on 30.09.2004 only, and that the affidavit of the Counsel has not been filed. Then in Para 5, it is contended that the certified copy was already applied way-back on 03.06.2004, then again on 06.08.2004, and were obtained within a period of limitation, and third time, the copy was applied on 010.2004, only for the purpose of cooking up a false story. Thus, in substance, it is sought to be contended, that the appellant was aware of the Judgment , his Counsel had already obtained the copy of the Judgment twice, and the whole story of contacting the Counsel on 30.09.2004, or of his illness, and of obtaining copy on 010.2004 is a myth. 4. After filing of this reply, a rejoinder was filed by the petitioner, wherein it was contended that, the Respondent No. 4, who was a joint purchaser, had misled the appellant by the time of trial of the suit, and after promise he failed to give necessary information to the appellant. On the other hand, his daughters have purchased the share of the Respondent No. 4, and a registered sale-deed is executed on 28.02.2003, and thus, the question again is left open, that when the Respondent No. 1 and 2 filed the suit for cancellation of sale-deed of the share of the Respondent No. 4. Thus, a new story of some belief and fault on the part of the Respondent No. 4 is alleged. Then as per plea taken in Para 2, the medical certificate was sought to be filed. Thus, a new story of some belief and fault on the part of the Respondent No. 4 is alleged. Then as per plea taken in Para 2, the medical certificate was sought to be filed. Then regarding the delay between 23.09.2004 to 30.09.2004, it was contended that the record of the suit was not available with the appellant, and the same was transferred to the record-room at Bhilwara, meaning thereby, that the appellant was trying to search the record. Then replying Para 5 of the reply, it was contended that on 03.06.2004, Ladu Lal Gurjar took the copy of the Judgment , while on 06.08.2004 other than the appellant took the copy, and, therefore, it cannot be presumed against the appellant, that both the persons, who took copies, informed the appellant. 5. To this rejoinder, a sur-rejoinder was filed on the side of the Respondent, contending that the appellant has now come with a new story, of having been misled by the Respondent No. 4. It was also submitted, that the transaction had been made a subject matter of cross-examination of PW. 2, the Respondent No. 2. Then regarding medical certificate, it was contended that the prescription slips have not been produced, apart from the fact, that the copy of the certificate given to the Respondent does not bear any serial number, or date, however, the certificate, which has now been produced in the Court,purports to have been issued on 08.09.2004, bearing serial No. 18901, but then, it certifies, that the appellant had remained under treatment from 08.09.2004 to 23.09.2004, which clearly shows, that the certificate is collusive. Some controversy was also raised about the nature of disease. Regarding obtaining certified copy, it was contended, that the application was moved on behalf of the appellant through Advocate Shri Vinod Kumar Pareek on 010.2004, and prior to this, two times copies were obtained by their Counsel. The certified copies of the applications for certified copies have been filed. A prayer has also been made, that the appellant be prosecuted for cooking up a false story after taking appropriate proceedings, under Section 340, CrPC. 6. I have perused the medical certificate, produced by the appellant, and a look thereat shows, that it reads, “This is to certify that Shri Murli Manohar Sharma has suffered from AC Peoria. He remained under my treatment since 08.09.2004 to 23.09.2004. 6. I have perused the medical certificate, produced by the appellant, and a look thereat shows, that it reads, “This is to certify that Shri Murli Manohar Sharma has suffered from AC Peoria. He remained under my treatment since 08.09.2004 to 23.09.2004. He was advised to take rest completely in this period. Registration No. 18901 dated 08.09.2004.” Thus, on the very face of the certificate, it transpires, that firstly it does not bear any serial number, or outward number. Then it has been issued on 08.09.2004 itself , while the certificate purports to certify the appellant to have remained under his treatment during the period 08.09.2004 to 23.09.2004, and that he was advised to take rest completely in this period, which obviously could not be on 08.09.2004. Thus, the certificate on the face of it, does not inspire confidence, and clearly appears to be an attempt to pad up the story, propounded in the application under Section 5 of the Limitation Act. This, coupled with the fact, that it is not in dispute, that Ladu Lal Gurjar was the Counsel for the appellant, and as appears from the certified copy of the application for certified copy, filed by the learned Counsel for the Respondent, that this Ladu Lal Gurjar has applied for certified copy of the Judgment and decree on 03.06.2004, which admittedly has been received, while the other two copying applications being 06.09.2004 and 010.2004, have been filed by the same Counsel, and the appeal has been filed on the basis of the copy, said to have been received on the application dated 010.2004. Thus, it is clear, that the persons moving all the three applications were entitled to move applications for certified copy, on behalf of the appellant. Obviously, since certified copies have been received, pursuant to these applications, it cannot be believed, on the face value, that as pleaded in Para 4 and 5 of the application under Section 5, as if the appellant contacted the Counsel on 30th September, and sought necessary information about decision of the suit, and that since record was not available at Gulabpura, he applied for certified copy on 010.2004. Had this been true, the learned Counsel would have immediately informed about his already having obtained certified copy twice, and there was no occasion for applying for the certified copy afresh on third time. Had this been true, the learned Counsel would have immediately informed about his already having obtained certified copy twice, and there was no occasion for applying for the certified copy afresh on third time. Significantly, it is not the averment, that the certified copies, earlier obtained, had been taken away from the Counsel, by the other defendants-Respondents, who were being represented by the same Counsel. This coupled with the fact, that the allegation about the appellant, being on mobile, and the Counsel having a residential landline telephone, having not been disputed, the whole story, propounded about the appellant having not been informed about the Judgment , then about having learnt from the Tehsildar, then having fallen ill, then having contacted the Counsel, and then having obtaining certified copy, is all, on the face of it, a make believe story, which does not inspire any confidence. 7. Thus, the application filed under Section 5 of the Limitation Act has no force, and is, therefore, dismissed, and consequently, the appeal is also dismissed as time barred. 8. Learned Counsel for the appellant at this stage prays for refund of the Court fees. Exercising powers under Section 61 of the Rajasthan Court Fees and Valuation Act, since, he appeal has been dismissed as time barred, 50% of the Court fees paid on the memo of appeal, is directed to be refunded.