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2013 DIGILAW 2148 (RAJ)

Raju v. Ramotar Bhardwaj

2013-12-03

BELA M.TRIVEDI

body2013
JUDGMENT 1. - The present appeal filed by the appellants-original defendants is directed against the order dated 27.1.04 passed by the Addl. District & Sessions Judge, Sambhar Lake, District Jaipur (hereinafter referred to as 'the appellate court'), whereby the appellate court had dismissed the Civil Regular Appeal being No. 14/98 for default and for want of prosecution, and also for non-service to the respondents. The appeal is also filed against the order dated 9.2.10 passed by the same court rejecting the application of the appellants filed under Order 41, Rule 19 of CPC, for re-admission of the appeal which was dismissed for default. 2. It appears that a Civil Suit being No. 44/90 was filed by the respondent-plaintiff against the appellants-defendants seeking permanent injunction in respect of the land, as shown in the map annexed to the plaint, which suit was decreed by the Civil Judge (JD)& Judicial Magistrate, Sambhar Lake, Jaipur (hereinafter referred to as 'the trial court') as per the judgment and decree dated 24.8.98. Being aggrieved by the said judgment and decree the appellants had preferred Civil Regular Appeal being No. 14/98, which came to be dismissed for default as stated above on 27.1.04. The appellants thereafter filed the application under Order 41, Rule 19 of CPC on 12.8.04 seeking re-admission of the said appeal. The said application came to be dismissed by the appellate court vide the impugned order dated 9.2.10. 3. It appears that the appellants instead of filing the Civil Misc. Appeal challenging the order dated 9.2.10 passed under Order 41, Rule 19 in view of the Order 43, Rule 1 (t) of CPC, filed the writ petition being NO. 3190/10. The respondent having appeared and raising objection about the maintainability of the writ petition, the learned Single Judge permitted the appellants-petitioners to convert the said writ petition into Civil Misc. Appeal directing the learned counsel for the appellants to complete the requirements necessary for converting the writ petition into Civil Misc. Appeal. Being aggrieved by the said order, the respondent had preferred the DB Special Appeal(W) No. 1319/13, whereby the Division Bench dismissed the said appeal vide the order dated 29.11.13, keeping open the rights available to the parties to address on the objections raised by the respondent. Accordingly the said writ petition was converted into the present Civil Misc. Appeal. Appeal. Being aggrieved by the said order, the respondent had preferred the DB Special Appeal(W) No. 1319/13, whereby the Division Bench dismissed the said appeal vide the order dated 29.11.13, keeping open the rights available to the parties to address on the objections raised by the respondent. Accordingly the said writ petition was converted into the present Civil Misc. Appeal. The appellants have thereafter filed the application under Section 5 of the Limitation Act seeking condonation of delay occurred in filing the appeal. 4. It has been submitted by the learned counsel for the appellants that the appellants were bona fide prosecuting the writ proceedings against the order dated 9.2.10, by which the appellate court had dismissed the application of the appellants filed under Order 41, Rule 19 of CPC, and therefore the appellants are entitled to the benefit of Section 14 of the Limitation Act. He also submitted that the appeal was dismissed by the appellate court on 27.1.04 for default and for want of prosecution as the concerned lawyer who was engaged by the appellants did not appear before the appellate court on the date fixed by the court. He also submitted that the appellants should not be made to suffer on account of the fault committed by the lawyer. Mr. Sharma has relied upon the decisions of the Apex Court in the case of Rafiq & Anr. v. Munshilal & Anr., AIR 1981 SC 1400 , Goswami Krishna Murarilal Sharma v. Dhan Prakash & Ors., (1981) 4 SCC 574 , Malkiat Singh & Anr. v. Joginder Singh & Ors., AIR 1998 SC 258 , M.K. Prasad v. P. Arumugam, AIR 2001 SC 2497 , and on the decisions of this court in the case of Banwarilal & Smt. Gini Devi v. Mangilal Estate Pvt. Ltd. 1993(1) RLR, 139 , Raj. State Industrial Development & Investment Corporation Ltd. Jodhpur v. M/s. Modi Thread Mills, Jodhpur 2003(3) WLC (Raj.) 44 and Om Prakash Vijay v. State of Rajasthan, 2011 WLC (Raj.) UC 684 , in support of his submissions. 5. However, the learned counsel Mr. Sanjeev Prakash Sharma, senior counsel for the respondent taking the court to the proceedings filed by the appellants vehemently submitted that the appellants, misusing the process of law had filed the writ petition, though the civil misc. appeal was required to be filed challenging the impugned order. 5. However, the learned counsel Mr. Sanjeev Prakash Sharma, senior counsel for the respondent taking the court to the proceedings filed by the appellants vehemently submitted that the appellants, misusing the process of law had filed the writ petition, though the civil misc. appeal was required to be filed challenging the impugned order. He also submitted that though the appeal was preferred in the year 1998 by the appellants before the appellate court, the appellants had not bothered to serve the respondent till 2004 when the appeal was dismissed for default and for want of prosecution. He also submitted that though the writ petition was filed in March, 2010, the appellants-petitioner had not filed any stay application till May, 2013. According to him the intentions of the appellants being not bonafide, the present application seeking condonation of delay under Section 5 read with Section 14 of the Limitation Act deserves to be dismissed. Mr. Sharma has also relied upon the decisions of this court in the case of Banshi @ Banshidhar Agarwal v. Laxmi Narain, 1994(1) RLW, 212 , Bhandari Das v. Smt. Sushila & Ors., 1997(1) WLC (Raj.), 607 and Bal Kishan Sharma & Ors. v. Radhey Shyam Godhawat, 2012(2) Civil Court Cases, 412 , in support of his submissions. 6. Having regard to the submissions made by the learned counsels for the parties and to the documents on record, more particularly the order passed by the appellate court as well as by the learned Single Judge and by the Division Bench of this court, it clearly appears that the appellants had misused the process of law by filing the writ petition against the impugned order dated 9.2.10, though civil misc. appeal was required to be filed in view of the provisions contained in Order 41, Rule 1 (t) of CPC. There is no explanation coming forth from the learned counsel for the appellants as to why the writ petition was preferred when the appeal was maintainable under the law. appeal was required to be filed in view of the provisions contained in Order 41, Rule 1 (t) of CPC. There is no explanation coming forth from the learned counsel for the appellants as to why the writ petition was preferred when the appeal was maintainable under the law. The submissions made by the learned counsel for the appellants that the parties should not be made to suffer on account of the ignorance of law or on account of the fault of the lawyer, cannot be accepted, for the simple reason that the appellants have admittedly not taken any action against the concerned lawyer who had not appeared in the appeal before the appellate court, which had resulted into the dismissal of the appeal nor against the lawyer who had deliberately or otherwise chosen wrong forum in the High Court by filing the writ petition instead of civil misc. appeal. From the entire conduct of the appellants, it appears that the appellants intentions were not bona fide. As per the settled legal position mistake of counsel or ignorance of law on the part of the counsel could not be treated as 'sufficient cause' for condonation of delay. It is also settled legal position that courts should not extend the period of limitation out of benevolence to the party seeking relief. 7. In that view of the matter, the appellants having chosen the wrong forum and the appellants having not explained the reason for choosing the wrong forum, it could not be said that the appellants were prosecuting the writ proceedings bona fide. Hence, the delay occurred in filing the present civil misc. appeal cannot be condoned. 8. The present appeal being barred by law of limitation is dismissed.Appeal dismissed. *******