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2010 DIGILAW 1499 (RAJ)

Shanker through LRs. v. P. D. Vergis through LRs.

2010-08-18

R.S.CHAUHAN

body2010
Hon'ble CHAUHAN, J.—The appellants are aggrieved by the order dated 19.03.2010, passed by the learned Additional District Judge No.1, Ajmer, whereby the learned Judge has dismissed the application under Order 22 Rule 9(2) and Rule 3 of CPC for setting aside abatement of suit. 2. The brief facts of the case are that the appellants' father, Shanker, had filed an application under Order 9 Rule 13 CPC before the trial court for quashing and setting aside the ex-parte judgment and decree dated 14.10.1996 passed in a suit for specific performance of the agreement of sale under the provision of the Specific Relief Act. In 2002, the appellants' father had died. On 05.02.2003, the respondents' father, Mr. P.D. Vergis, also died. According to the learned counsel for the appellants, since the legal representatives did not know about the above mentioned proceedings, on 21.03.2003 the said application for setting aside the ex-parte decree had become abated. On 30.08.2003, after coming to know about the aforesaid proceedings under Order 9 Rule 13 CPC, the legal representatives of the defendant preferred an application under Order 22 Rule 9(2) and Rule 3 of CPC along with the application under Section 5 of Limitation Act, 1963 seeking the relief of setting aside the order of abatement and to bring the legal representatives on record. On 20.11.2004, the respondents filed reply to the said application. However, vide order dated 19.03.2010, the learned trial court dismissed the application under Order 22 Rule 9(2) and Rule 3 of CPC. Hence, this appeal before this Court. 3. Mr. Dilip Sharma, the learned counsel for the appellants, has vehemently contended that the application under Order 22 Rule 9(2) and Rule 3 of CPC has been dismissed on technical grounds. 4. Heard the learned counsel for the appellants and perused the impugned order. 5. Hence, this appeal before this Court. 3. Mr. Dilip Sharma, the learned counsel for the appellants, has vehemently contended that the application under Order 22 Rule 9(2) and Rule 3 of CPC has been dismissed on technical grounds. 4. Heard the learned counsel for the appellants and perused the impugned order. 5. The reasoning given by the learned Judge is as under : ^^izkFkhZx.k dh vksj ls tks izkFkZuk i= is'k gqvk gS mlesa ;g dgha ij Hkh vafdr ugha fd;k gS fd muds firk 'kadj }kjk is'k fd;k x;k izkFkZuk i= vkns'k 9 fu;e 13 flfoy izfØ;k lafgrk fdl rkjh[k dks mi'kfer gqvk izkFkZuk i= ds iSjk la[;k 4 esa izkFkZuk i= ds mi'kfer gksus dh frfFk [kkyh NksM+h gq;h gSA blh izdkj fe;kn vf/kfu;e ds rgr tks izkFkZuk i= is'k gqvk gs mlesa Hkh i`"B la[;k 2 iSjk 5 esa izkFkZuk i= vkns'k 9 fu;e 13 flfoy izfØ;k lafgrk mi'kfer gksus dh rkjh[k Hkh vafdr ugha dh gq;h gSA izkFkZuk i= esa izkFkhZ kjk vius firk 'akdj dh e`R;q tuojh] 2002 esa gksuk crk;k gS vkSj ,di{kh; dk;Zokgh fujLr djus dk izkFkZuk i= vizkFkhZ ds tokcnkosa ds vuqlkj 21-3-2003 dks mi'kfer gqvk gSA firk ds }kjk dksbZ dk;Zokgh U;k;ky; esa dh tk jgh gks vkSj mldh tkudkjh mlds fdlh Hkh iq= dks ugha gks ;g laHkkouk de gh utj vkrh gSA e`rd 'kadj ds pkj iq= gs vkSj mu pkjksa esa ls fdlh dks Hkh bl izdj.k dh tkudkjh ugha gks ;g fo'oluh; izrhr ugha gksrk gSA izkFkhZx.k dh vkSj ls fe;kn vf/kfu;e dh /kkjk 5 ds rgr tks izkFkZuk i= is'k fd;k gs mls foyEc ls is'k djus ds tks dkj.k crk;s gS os leqfpr izrhr ugha gksrs gS D;ksafd U;k;ky; ds le{k foyEc dks ekQ djus ds fy, fnu izfrfnu dk Li"Vhdj.k fn;k tkuk vko';d gSA oSls Hkh ;fn izkFkhzx.k ds izkFkZuk i= /kkjk 5 ifjlhek vf/kfu;e dk voyksdu fd;k tk, rks muds voyksdu ls ;g fu"d"kZ fudyrk gS fd izkFkhZx.k dks vkt Hkh tkudkjh ugha gS fd muds firk 'kadj }kjk is'k fd;k x;k izkFkZuk i= vkns'k 9 fu;e 13 flfoy izfØ;k lafgrk fdl rkjh[k dks mi'kfer gqvkA nksuksa izkFkZuk i=ksa esa 'kadj }kjk is'k fd;s x;s izkFkZuk i= ds mi'kfer gksus dh rkjh[k vafdr gh ugha dh gS cfYd [kkyh j[kh gq;h gSA vr% ,slh fLFkfr esa eSa bl fu"d"kZ ij igqapk gqa fd foyEc dks ekQ djus dk dksbZ vkSfpR; utj ugha vkrk gSA** 6. The contention raised by the learned counsel for the appellants is certainly untenable. For, the reasons given by the learned Judge are not technical in nature, but are logical and legal. The learned Judge has correctly noted the fact that the applicant has not even bothered to mention the date when the matter became abated in his application. He has also noted the fact that it would be rather surprising that in a village when a battle is fought over a land, the four sons of the family would be unaware about the pending litigation. Admittedly, both the appellants and the respondents are resident of village Boraj, Tehsil and District Ajmer. Admittedly, the battle between the two parties is over the agriculture land. Considering the fact that the agriculture land is the basis of livelihood for the appellants, it is rather surprising that the appellants claim that they are unaware of the fact that a litigation was pending between the plaintiff and the appellant's father, Shankar. Considering the fact that both the parties were resident of the same village, considering the fact that the litigation was pending with regard to the agriculture land, it must be the talk of the entire village that both the parties are engaged in a litigation. Therefore, the appellants are not justified in pretending to be ignorant of the pending litigation. This observation made by the learned Judge is based on the reality of the Indian village. Moreover, the learned Judge has also noticed that the appellants have not given cogent reasons for the delay in filing the application. Thus, the learned Judge is certainly justified in dismissing the said application. Hence, this Court does not find any illegality or perversity in the impugned order dated 19.03.2010. This appeal, devoid of merit, is hereby dismissed.