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Rajasthan High Court · body

2005 DIGILAW 2766 (RAJ)

Pranav Shankar v. Parvati Devi

2005-10-21

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-S.B. Civil Revision Petition No. 260/1999 is directed against the Judgment dated 112.1998 passed by the Additional District Judge No. 3, Udaipur in Civil Appeal No. 22/1996 whereby the learned lower appellate Court set aside the order dated 210.1994 passed in Civil Original Case No. 49/1987 by which application filed by the defendant-petitioners under Order 22 Rules 3 & 4, CPC alongwith application under Section 5, Limitation Act was rejected. S.B. Civil Revision Petition No. 1492/1999 is filed against the order of the trial Court dated 23.08.1999. Since, the material facts and circumstances of both the cases are identical they are decided by this common order. 2. Assailing the order passed by the appellate Court, the defendant-petitioners submitted that defendant Om Prakash, father of the petitioners expired on 212.1992 and the information about his death was given in the daily news-paper. The plaintiff was required to bring application under Order 22 Rule 4, CPC for bringing on record the legal representatives of the deceased defendant within 90 days. The plaintiff , non petitioners moved the application under Order 22 Rule 4, CPC on 22.03.1993 beyond the period of 90 days and that too without any application under Section 5, Limitation Act or an application for setting aside the abatement. On 01.03.1994, legal representatives of the deceased defendant moved an application for rejection of the suit as the same stood abated. Thereafter, the plaintiff moved application under Section 5, Limitation Act on 23.08.1994 mentioning that the application under Section 22 Rule 4, CPC was misplaced and, therefore, the same could not be filed within time. 3. Learned Counsel for the petitioner submitted that no application for setting aside the abatement under Order 22 Rule 9, CPC was filed and the application for bringing on record the legal representatives of the deceased defendant was also not filed within limitation. He contended that the application for condonation of delay under Section 5, Limitation Act was also filed six months after filing the application under Order 22 Rule 4, CPC and, therefore, the trial Court rejected the application filed by the plaintiff . 4. He contended that the application for condonation of delay under Section 5, Limitation Act was also filed six months after filing the application under Order 22 Rule 4, CPC and, therefore, the trial Court rejected the application filed by the plaintiff . 4. It is observed in the order dated 210.1994 that the plaintiff has not explained the day-to-day delay and the reason which is given in the affidavit filed by the Advocate Jai Kishan Dave cannot be accepted because no such explanation was given by the plaintiff in the application filed under Order 22 Rule 4, CPC. Against the said rejection by the trial Court, an appeal was preferred before the learned District Judge, Udaipur and, thereafter, the appeal was transferred to the learned Additional District Judge No. 3. Udaipur for adjudication. In all, three cases were pending and accordingly three appeals were filed before the appellate Court. In the order dated 112.1998, in the cause-title, it is stated there were three cases bearing No. 204/1985, 49/1987 and 337/1985 and the order dated 210.1994 was passed in all these three cases by the trial Court, therefore, record was ordered to be called by this Court vide order dated 22.07.1999 in the present revision petition. 5. S.B. Civil Revision Petition No. 1492/1999 has also been filed by the petitioners against the order passed by the trial Court in Civil Original Suit No. 337/1985 dated 23.08.1999. It is stated in the revision petition by the petitioners that their father, late Om Prakash died on 212.1992 and application under Order 22 Rule 4, CPC for bringing on record the legal representatives was to be filed within 90 days but the application was moved on 22.03.1993 beyond the period of 90 days and no steps for setting aside abatement were taken. On the receipt of the notices, application was moved on 01.03.1994 for rejection of the suit as having abated. The learned trial Court vide order dated 210.1994 rejected the application of the plaintiff , non-petitioners filed under Order 22 Rule 4, CPC as well as application under Section 5, Limitation Act. Being aggrieved, appeal was made to the District Judge, Udaipur which was later on transferred to the Additional District Judge No. 3, Udaipur. In all, three appeals were filed out of which Civil Appeals No. 20/1996 and 21/1996 were dismissed as not pressed on 112.1996. Being aggrieved, appeal was made to the District Judge, Udaipur which was later on transferred to the Additional District Judge No. 3, Udaipur. In all, three appeals were filed out of which Civil Appeals No. 20/1996 and 21/1996 were dismissed as not pressed on 112.1996. Thus, Judgment dated 112.1998 has, in fact, been given only in Civil Appeal No. 22/1996 and there was no occasion for the appellate Court to decide Civil Appeals No. 20/1996 and 21/1996 which were already dismisses as not pressed on 112.1996. The Judgment passed by the appellate Court was placed before the trial Court for compliance and since, there was reference of all the three cases in the cause-title of the Judgment dated 112.1998, the trial Court proceeded on the presumption that the Judgment governed all the three cases whereas Judgment dated 112.1998 was delivered by the appellate Court only in Civil Appeal No. 22/1996 arising out of Civil Suit No. 204/1985 and Civil Appeals No. 20 and 21/1996 were dismissed as not pressed on 112.1996. In these facts and circumstances, there was no occasion for the trial Court to treat the Judgment passed in Civil Appeal No. 22/1996 as governing Civil Suit No. 337/1985 as well. 6. The trial Court erroneously accepted the contention of the plaintiff , non-petitioners that the order-sheet dated 112.1988 was wrongly drawn by the appellate Court and the Judgment dated 112.1998 is required to be treated as governing all the three suits. The learned trial Court has exceeded its jurisdiction while accepting the contention of the non-petitioner plaintiff . The only course was to move proper application before the appellate Court to recall order dated 112.1998 which was suggested to have been wrongly drawn and, without that order having been recalled, the trial Court was not justified in proceeding in all the three cases in compliance of Judgment dated 112.1998 passed in Civil Appeal No. 22/1996. In this view of the matter, the order dated 23.08.1999 passed by the trial Court in Civil Original Suit No. 337/1995 deserves to be set aside. 7. It is contended by learned Counsel for the plaintiff , non-petitioner that there is no error in the Judgment dated 112.1998 wherein the appellate Court categorically observed that there is no material on record to disbelieve the affidavit filed by Advocate Shri Jai Krishan Dave for condoning the delay. 7. It is contended by learned Counsel for the plaintiff , non-petitioner that there is no error in the Judgment dated 112.1998 wherein the appellate Court categorically observed that there is no material on record to disbelieve the affidavit filed by Advocate Shri Jai Krishan Dave for condoning the delay. Counsel for the non-petitioner argued that the trial Court rightly held that non-petitioner is widow and she has informed her Advocate that her husband Om Prakash died on 212.1992 which is obvious from the order-sheet dated 22.03.1993 but due to apathy of her Advocate, the application was filed on 22.03.1993. I am of the opinion that there was no fault on the part of the plaintiff non-petitioner, Parvati Devi because she had informed her Advocate within time. Thus, there is no error or illegality in the impugned Judgment dated 112.1998 passed in Civil Appeal No. 22/1996. 8. Consequently, S.B. Civil Revision Petition No. 260/1999 is dismissed. The order dated 23.08.1999 impugned in S.B. Civil Revision Petition No. 1492/1999 is, however, set aside and Civil Revision petition No. 1492/1999 stands allowed. The plaintiffs shall be at liberty to move appropriate application in accordance with law for recalling the order dated 112.1998, if so advised, within a period of one month.