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2014 DIGILAW 3311 (ALL)

Jhakri v. Kamk. Ram

2014-11-07

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal,J. I have heard learned counsel for the parties and have gone through the record. 2. The applicant through their counsel has moved C.M. Application No.1927 of 2006 for modification of the judgment and order dated 24.11.2003 whereby the second appeal was dismissed as not pressed. 3. Learned counsel for the applicant has submitted that during the pendency of the second appeal, the appellant no.1 Jhakri died in the month of June, 2003 leaving behind the applicant as his only son and legal heir. However no application for substitution to bring on record the legal heir of the deceased-appellant was moved before this Court. In the meantime, the appellant no.2 entered into compromise with the respondents without the knowledge of the applicant and got an application moved for dismissal of the second appeal by engaging another counsel and stating therein that the parties had entered into settlement outside the Court and as such the appeal be dismissed as not pressed. 4. The submission on behalf of the applicant is that the applicant was not aware of all these developments and the appellant no.2 alone was not competent to withdraw or not press the second appeal fully knowing that the applicant, who is son of the deceased-appellant no.1 was also interested in the matter. It was in the month of August, 2006 that the applicant was asked by the respondents as to why he did not start some business out of the amount received by him. This came as a surprise to the applicant, who made inquiry and then only the fact of dismissal of the appeal came to his knowledge. He then immediately contacted his counsel, who advised him to move this application for modification/recall of the order dated 24.11.2003. The prayer has also been made for condonation of delay in moving the application for recall/modification of the order dated 24.11.2003. Another application for substitution/impleadment of the applicant along with an application for condonation of delay has also been moved. 5. The respondents have filed objections along with affidavit in which it has been stated that the appellant no.2 while moving the application for withdrawal of the second appeal, clearly mentioned that the appellant no.1 Jhakri died during the pendency of the second appeal. 5. The respondents have filed objections along with affidavit in which it has been stated that the appellant no.2 while moving the application for withdrawal of the second appeal, clearly mentioned that the appellant no.1 Jhakri died during the pendency of the second appeal. It was further stated in the affidavit that the second appeal was filed against the judgment and order dated 29.09.1984 by which the first appeal was allowed and the suit filed on behalf of the appellants was held to be not maintainable in view of the provisions of Order 23 Rule 3A CPC. It was further stated in the affidavit that late Shri Jhakri had already executed a sale-deed of his share in the property in dispute in favour of certain persons and as such his interest in the property in dispute had come to an end. Similarly, the appellant no.2 also executed a sale-deed of his share in favour of his daughter Smt. Sumitra and as such both the appellants lost their interest in the subject matter. Since the appellant no.1 Jhakri had died after executing the sale-deed, the surviving appellant no.2 Pancham moved an application for withdrawal of the appeal and this Court after considering the aforesaid facts, passed an order dismissing the second appeal as not pressed. 6. From the perusal of the record, I find that the appellants of the present second appeal had filed a suit for cancellation of decree dated 05.04.1971 passed on the basis of compromise. The suit was contested and was decreed by the judgment and order dated 28.09.1982. Feeling aggrieved by the aforesaid judgment and order, the respondents no.1 and 2 filed Regular Civil Appeal No.280 of 1982 before the District Judge, which was allowed by the judgment and order dated 29.09.1984 and the judgment and decree passed by the lower court was set aside on the ground that the suit was barred under Order 23 Rule 3-A CPC and was not maintainable. It is against aforesaid judgment and decree that the appellants had preferred the second appeal before this Court. It is not in dispute that during the pendency of the second appeal both the appellants had transferred their shares in the property to other persons and on the application of the appellant no.2, the second appeal was dismissed as not pressed. It is against aforesaid judgment and decree that the appellants had preferred the second appeal before this Court. It is not in dispute that during the pendency of the second appeal both the appellants had transferred their shares in the property to other persons and on the application of the appellant no.2, the second appeal was dismissed as not pressed. The applicant, who happens to be the son of the deceased-appellant no.1 has approached this Court for recall/modification of the order and has prayed that the second appeal may be treated dismissed as not pressed only in respect of the appellant no.2 and not in respect of the appellant no.1, who had died during the pendency of the second appeal and no steps were taken to bring on record the applicant as his legal heir. The grounds taken for recall/modification of the order are that the applicant never entered into the compromise because his father late Shri Jhakri had already died in the month of June but it is nowhere denied that late Shri Jhakri did not transfer his share to other persons. Apart from this, it cannot be ignored that the application for recall/modification has been moved after about three years of the dismissal of the appeal and the explanation for delay as mentioned in the affidavit is that when the respondents asked as to why he did not start any business out of the amount received, he became suspicious and made inquiry and only then it was known to him that the second appeal was dismissed as not pressed on the application moved by the appellant no.2. This goes to show that the applicant being the son of the deceased-appellant no.1 was fully aware of the fact of pendency of the second appeal but after the death of his father he did not come forward to be impleaded as legal heir of his deceased father. The explanation given by the applicant for the delay in moving the present application for recall/modification of the order is also not satisfactory and believable. There was no occasion for the respondents to have asked the applicant as to why he did not start the business out of the amount received by him. It appears that this ground has been taken for the purposes of explaining the delay, which prima-facie appears to be flimsy and concocted. There was no occasion for the respondents to have asked the applicant as to why he did not start the business out of the amount received by him. It appears that this ground has been taken for the purposes of explaining the delay, which prima-facie appears to be flimsy and concocted. The present application for modification is, therefore, also barred by latches as the applicant has been grossly negligent in pursuing the matter. Moreover, it has also not been disputed that late Shri Jhakri-appellant no.1 had transferred his share in the property in dispute to some other persons and as such had lost interest in the appeal. Probably this was the reasons that neither any steps for substitution were taken nor the applicant came forward to be impleaded as party in place of his deceased father. 7. This fact also cannot be ignored that since after the death of the appellant no.1, no steps were taken to bring on record the legal representative of the deceased appellant. The appeal stood abated as regards appellant no.1. 8. In the aforesaid circumstances, I do not find any sufficient ground for interfering with the order dated 24.11.2003 dismissing the appeal as not pressed. The application for recall/modification of the order is accordingly rejected. 9. Since the application for recall/modification of the order dated 24.11.2003 has been rejected and now no appeal is pending, therefore, the applications for substitution, condonation of delay and setting aside the abatement are also rejected.