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2013 DIGILAW 1205 (RAJ)

Vagaram v. Gautam Rishi Trust

2013-07-08

ARUN BHANSALI

body2013
JUDGMENT 1. - Heard learned counsel for the parties. 2. An application has been filed by the appellants seeking leave to file an appeal against the order dated 4.1.2012 passed by the District Judge, Sirohi in Civil Misc. Case No. 2 of 2011 titled as Gautam Rishi Trust Meena Samaj through its Chairman Umaram and others v. Vardaram and others and Civil Misc. Case No. 4 of 2011 titled as Sonaram & Ors. v. Vardaram and others . 3. It is submitted in the application that three misc. applications being 49/2010, 2/2011 and 4/2011 came to be filed in pursuance of the order passed by the Assistant Commissioner, Devasthan under Section 38 of the Rajasthan Public Trust Act, 1959. 4. While the appellants were impleaded as parties to Civil Misc. Case No.49/2010, they were not parties to Civil Misc. Case Nos. 2/2011 and 4/2011. However, all these three misc. cases were being considered simultaneously by the District Judge as the same related to Shri Gautam Rishi Trust. It is further submitted that all these three civil misc. cases (supra) came to be decided by way of compromise by order dated 4.1.2012. As the appellant was party to Civil Misc. Case No.49/2010, immediately appeal was filed against the said order, however, in view of the fact that they were not party to Civil Misc. Case No.2/2011 and 4/2011, the appeals could not be filed. 5. It is further submitted that for all practical purposes the proceedings took place in Misc. Case No.49/2010 only. However, while passing the final order on 4.1.2012, the same order was passed in all these three cases. It is submitted that the appellants bonafidely believed that as they were party to one of the Misc. Case then challenging the order in the said case would be sufficient and there was no necessity to challenge the orders passed in Civil Misc. Case Nos.2/2011 and 4/2011. However, subsequently, in view of the nature of order passed by the District Judge, they have been advised to challenge the order in Civil Misc. Case Nos.2/2011 and 4/2011 also, so as to obviate possibility of any conflicting orders in three different cases. 6. Case Nos.2/2011 and 4/2011. However, subsequently, in view of the nature of order passed by the District Judge, they have been advised to challenge the order in Civil Misc. Case Nos.2/2011 and 4/2011 also, so as to obviate possibility of any conflicting orders in three different cases. 6. The appellants-applicants have also moved applications under Section 5 the Limitation Act seeking condonation of delay in filing the applications/appeals, for the reasons indicated therein which essentially are similar to the averments made in the applications for leave to appeal. 7. The submissions as noticed above has been disputed by learned counsel Mr. Rajesh Shah. 8. It is submitted that the appellants were well aware of the fact that three different proceedings being Civil Misc. Case Nos.49/2010, 2/2011 and 4/2011 were pending consideration before the District Judge and all these three proceedings were decided simultaneously by way of compromise by order dated 4.1.2012. There was no reason for the appellants-applicants to assume that the orders passed in Civil Misc. Case Nos.2/2011 and 4/2011 are not required to be questioned, in case they were aggrieved by the same. Having failed to question the same in time now they cannot be permitted to question/challenge the orders passed in Civil Misc. Case Nos.2/2011 and 4/2011. It is further submitted that in any case no reason for condonation of delay has been made out by the appellants. 9. I have considered the submissions made on behalf of both the parties. 10. It is not in dispute that the appellants-applicants were party to the Civil Misc. Case No.49/2010 and they were not parties to Civil Misc. Case Nos.2/2011 and 4/2011 and it is also not disputed that as soon as the order dated 4.1.2012 was passed by the District Judge, the same was challenged by the appellants in Civil Misc. Case No.49/2010 by filing S.B.C.M.A.4 No.519/2012 and the same is pending consideration before this Court. The fact that the appellants were aggrieved by the order dated 4.1.2012 cannot be thus disputed and, therefore, it cannot be said that questioning of orders passed in Civil Misc. Case Nos.2/2011 and 4/2011 on their part is merely an after thought and they were not aggrieved by the order dated 4.1.2012, which has been passed in identical terms to that of order in Civil Misc. Case No.49/2010. 11. Case Nos.2/2011 and 4/2011 on their part is merely an after thought and they were not aggrieved by the order dated 4.1.2012, which has been passed in identical terms to that of order in Civil Misc. Case No.49/2010. 11. As such the applicants are entitled to grant of leave to file appeal from order dated 4.1.2012 in Civil Misc. Case No.2/2011 and 4/2011. 12. So far as the issue relating to delay in filing the present proceedings is concerned, it cannot be said that any malafides are involved in the appellants not challenging the orders in Civil Misc. Case Nos.2/2011 and 4/2011 and the fact that they were under the impression that as they were parties to Civil Misc. Case No.49/2010, questioning the said order alone would suffice cannot be said to be without any basis and as such, the application filed under Section 5 of the Limitation Act seeking condonation of delay deserves to be allowed. 13. The fact that even SBCMA No.519/2012 which arose in identical facts and circumstances is already pending consideration before this Court is an additional reason for entertaining these appeals which are absolutely identical in nature arising out of the same impugned proceedings, though passed in different civil misc. cases. 14. In view of the above discussion, the applications for leave to appeal are allowed. The application u/s 5 of the Limitation Act5 are also allowed. The delay in filing appeals is condoned and the appeals are ordered to be registered.List the appeals for admission along with SBCMA No.519/2012 on 16.7.2013. Record of Civil Misc. Case No.49/2010, 2/2011 and 4/2011 be summoned from the Court of District Judge, Sirohi decided on 4.1.2012. Requisition be given 'dasti' to learned counsel for the appellants. Application Allowed. *******