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2015 DIGILAW 330 (RAJ)

Brijbala (D) thr. LRs. v. Ramlal (D) thr. LRs

2015-02-04

VINEET KOTHARI

body2015
JUDGMENT : Vineet Kothari, J. The matter comes up today in pursuance of previous order dated 07.01.2015 passed by this Court whereby the application (IA No.3444/2014) filed by the applicant, Bhanwarlal S/o Lakhma Gameti, under Order 1, Rule 10 of Code of Civil Procedure, 1908, seeking his impleadment in the present first appeal was allowed and the counsel for the appellant-Smt. Brijbala (who is now represented through her legal heirs) were directed to file the amended cause title within a period of two weeks. 2. As per office report dated 21.01.2015, the amended cause title has not been filed so far by the learned counsel for the appellant, therefore, the matter was listed before the Court on 27.01.2015 and now today again on 04.02.2015. Mr. Khet Singh, learned counsel appearing on behalf of appellant informed the Court that the amended cause title has been filed today in the office but admittedly the same has been filed beyond the period of two weeks pursuant to the order dated 07.01.2015. 3. Mr. Khet Singh, learned counsel for the appellant submitted a separate application (IA No.865/2014) was filed on 11.02.2014, although the present appeal was filed by the appellant on 06.09.2013, has been filed by the appellant along with present first appeal seeking leave of this Court to file and maintain the present first appeal. Since the present appellant was not a party before the learned trial court. 4. So far as delay of 1571 days caused in filing the present appeal is concerned, the appellant/applicant has also filed an application under Section 5 of the Limitation Act being C.M.C.C. No.103/2014 on 11.02.2014 explaining the said delay and seeking condonation of such delay of about 4 years in filing the present appeal against the judgment and decree dated 18.02.2009 in Civil Suit No. 63/2009-Ambalal & Ors. v. Ramlal for cancellation of registered sale deed dated 14.11.1995 executed by one Champalal in favour of appellant/defendant, Ramlal, who in turn sold the suit land situated in Savina Kheda, Udaipur, to the applicant, Smt. Brijbala. The relevant para (2) of the said application under Section 5 of the Limitation Act is quoted herein below: - "2. v. Ramlal for cancellation of registered sale deed dated 14.11.1995 executed by one Champalal in favour of appellant/defendant, Ramlal, who in turn sold the suit land situated in Savina Kheda, Udaipur, to the applicant, Smt. Brijbala. The relevant para (2) of the said application under Section 5 of the Limitation Act is quoted herein below: - "2. That the delay in filing the appeal has occasioned due to the fact that the appellant came to know about the passing of judgment and decree by the court of Additional District Judge (FT) No.2, Udaipur only on 02.04.2013 and thereafter there was reasonable cause for not filing the appeal within time and delay in appeal deserves to be condoned." 5. Counsel for the appellant/applicant Smt. Brijbala, Mr. Khet Singh, submitted that the present applicant, who had purchased the suit property at a prior point of time then present respondent/defendant, Bhanwarlal S/o Lakhma Gameti, who is now been impleaded as a party-respondent and earlier represented the plaintiffs, namely, Ambalal, Kesulal, Smt. Dhamli Bai, Smt. Lehari Bai, Smt. Leela, Smt. Guddi and Sh. Laluram, being their power of attorney holder. The appellant, Brijbala, expired during the pendency of the present appeal and is now represented by her legal heirs, came to know of the impugned judgment dated 18.02.2009 under challenge in the present first appeal passed by the learned Additional District Judge (FT) No.2, Udaipur, only on 02.04.2013, therefore, the delay of 1571 days deserves to be condoned. He also wanted to place on record for persual certain judgments in support of his contention that a liberal view should be taken for condonation of delay in such cases, however, no such judgment has been cited before this Court. 6. Mr. Sudheer Sharma and Mr. Mahaveer Pareek, learned counsel appearing on behalf of the respondents, Bhanwarlal, submitted that the present first appeal has been filed by Smt. Brijbala W/o Sh. Chotu Lal (now represented through her legal heirs) with a delay of 1571 days i.e. about four years as pointed out by the office and the present appellant, Smt. Brijbala was not even party to the Civil Suit No.63/2009-Ambalal & Ors. v. Ramlal. The aforesaid suit was filed by applicant, Bhanwarlal S/o Sh. Chotu Lal (now represented through her legal heirs) with a delay of 1571 days i.e. about four years as pointed out by the office and the present appellant, Smt. Brijbala was not even party to the Civil Suit No.63/2009-Ambalal & Ors. v. Ramlal. The aforesaid suit was filed by applicant, Bhanwarlal S/o Sh. Lakhma Gameti (who had subsequently purchased the suit property and in the present first appeal, he has been now arrayed as party-respondent vide order dated 07.01.2015) was earlier in the capacity of power of attorney holder of original plaintiffs-Ambalal and others. He, therefore, argued that the present first appeal filed by the appellant-Smt. Brijbala, is even not maintainable before the Court and no leave deserves to be granted to her to file this present appeal. 7. Learned counsel for the applicant, Bhanwarlal, who has been throughout representing the interest of the plaintiffs earlier as power of attorney holder, now has been impleaded as party respondent, Mr. Sudheer Sharma, vehemently opposing the said application u/s 5 of the Limitation Act submitted that in the revenue suit before the learned Revenue Appellate Authority and Board of Revenue, the present appellant, Smt. Brijbala, herself sought her impleadment and, therefore, she was fully aware of this entire litigation between the parties going on and since Ramlal is said to have sold the suit property in favour of Brijbala, therefore, the suit was decreed ex parte against Ramlal and the present appellant, Smt. Brijbala, was not even impleaded in the said suit for cancellation of sale deed, which was sought, was between Ambalal and others and Ramlal vide sale-deed dated 13.11.1995. He also submitted that certain criminal proceedings were also launched against the present appellant, Smt. Brijbala, now represented by legal heirs, and which is pending in the competent court about the forgery in documents and sale-deed committed by her. He, therefore, submitted that on the basis of such vague and bald averments as made in para 2 of the application under Section 5 of the Limitation Act, quoted above, the huge delay of 1571 days does not deserve to be condoned, and no liberal view deserves to be taken in the present case. Therefore, the first appeal deserves to be dismissed being barred by limitation and no leave deserves to granted to the appellant to file the present appeal against the judgment and decree dated 18.02.2009 passed by learned Addl. Therefore, the first appeal deserves to be dismissed being barred by limitation and no leave deserves to granted to the appellant to file the present appeal against the judgment and decree dated 18.02.2009 passed by learned Addl. District Judge (FT) No.2, Udaipur. 8. I have heard the learned counsel for the parties at length and perused the record. 9. Even if a liberal view for non-compliance of the order dated 07.01.2015 for not filing the amended cause title within two weeks were to be taken, and that the amended cause title which is said to have been filed today, was to be condoned, this Court is of the opinion that no useful purpose will be served in entertaining the present first appeal by granting a leave to the present applicant/appellant, Smt. Brijbala, to maintain the present appeal and decide the same on merits. 10. Firstly, the appellant, Smt. Brijbala (now represented through her legal heirs) had no locus standi to challenge the judgment and decree dated 18.02.2009 in the present appeal as she was not a party impleaded before the learned trial court itself, though fact of her involvement in the revenue courts having not being disputed anywhere, nothing prevented her from seeking her impleadment in the present Civil Suit No.63/09 itself tried by the learned trial court below. The appellant did not make any efforts for seeking her impleadment and even after said judgment dated 18.02.2009 of the learned A.D.J. (FT) No.2, Udaipur, the present appellant remained silent for almost 4 years and with a delay of 1571 days, the present appeal was filed along-with an application seeking leave of this Court to file the present first appeal. The application under Section 5 of the Limitation Act was also filed later on viz. on 11.02.2014 whereas the present first appeal was filed on 06.09.2013. Such application for condonation of delay was filed only when the office pointed out such defects while making a report on 26.10.2013. The following defects were pointed out by the office: - 1. It is time barred by 1571 days. Counsel has not filed any application for condonation of delay. 2. Cause title not tally. 3. Index not signed by the counsel. 4. Age of deponent not mentioned. 5. CF (Court Fees) Rs.2/- not affixed on decree sheet. 6. Subject matter incomplete. 11. It is time barred by 1571 days. Counsel has not filed any application for condonation of delay. 2. Cause title not tally. 3. Index not signed by the counsel. 4. Age of deponent not mentioned. 5. CF (Court Fees) Rs.2/- not affixed on decree sheet. 6. Subject matter incomplete. 11. In the present first appeal, notices were issued by a coordinate bench of this Court on 04.03.2014 on the application for grant of leave to file appeal as well as application under Section 5 of the Limitation Act making the same returnable within a period of two weeks. Thereafter on 03.04.2014 since notices sent to respondents No.2 to 6 were returned back with the report that they are dead, counsel for the appellant was granted three weeks' to take necessary steps in this regard. On 29.04.2014, learned counsel for the appellant stated before the coordinate bench of this Court that since the appellant has expired, therefore, time was granted for taking necessary steps with qua the appellant as well as respondents No.2 to 6, who were also reported dead. Thereafter an application under Order 22, Rule 3 seeking substitution of legal representatives of deceased appellant, Smt. Brijbala, was allowed on 18.09.2014. Meanwhile, an application was also filed by the applicant, Bhanwarlal seeking correction in the application under Order 1, Rule 10 CPC and the said application seeking correction in the application was allowed by the coordinate bench of this Court on 07.10.2014. Thereafter, the case was adjourned on 13.10.2104 at the request of learned counsel for the appellant for filing reply to the application (IA No.3444/14) under Order 1, Rule 10 CPC. The counsel for the appellant, Bhanwarlal, thereafter sought time to file rejoinder to the reply and the case was again adjourned to 29.10.2014 and after hearing the learned counsel for the parties, the application (IA No.3444/14) under O. 1 Rule 10 filed by the applicant (Bhanwarlal) seeking his impleadment as party respondent was allowed by this Court on 07.01.2015. While allowing the application aforesaid, counsel for the appellant was granted two weeks' time to file the amended cause title, which too was not filed in time. 12. The aforesaid narration of the facts and orders passed by this Court in different benches clearly shows that the learned counsel for the appellant has taken this litigation very casually and in a non-chalant manner. 13. 12. The aforesaid narration of the facts and orders passed by this Court in different benches clearly shows that the learned counsel for the appellant has taken this litigation very casually and in a non-chalant manner. 13. Now coming to the application filed under Section 5 of the Limitation Act for seeking condonation of huge delay of 1571 days, para 2 of the said application has been quoted above and the averments made in para 2 of the application are vague to its core. From which source the appellant came to know of the passing of the impugned judgment and decree dated 18.02.2009 after 4 years on 02.04.2013, is not even mentioned in para 2 of the said application. The appellant still seeking leave to file the present appeal was already involved in the revenue litigation being Revenue Suit No.149/2010- Ambalal & Ors. v. Ramlal, State and Smt. Brijbala, present appellant (defendant No.3 in the Revenue Suit), which suit was between the same parties, therefore, it cannot be believed that the appellant was not aware about the pendency of the present civil suit before the learned Addl. District Judge, FT No.2, Udaipur. Even after four years of the impugned judgment dated 18.09.2009 on 02.04.2013 coming to know of the same without any proper explanation for these four years' delay, the present first appeal was filed by the appellant along with application for seeking leave to file the same on 06.09.2013, after five months. 14. In the instant litigation, if an party-applicant who was not even party before the court below wants to file on coming to know of the judgment dated 18.02.2009 on 02.04.2013, one fails to understand how even 4 months time was taken as the application seeking leave to appeal was filed only 11.02.2014 i.e. much after filing of the present first appeal on 06.09.2013. As already stated above, the delay of four years which has not been sufficiently explained by the appellant, nor subsequent delay of five months in filing the appeal and six months for even filing application under Section 5 of the Limitation Act itself, this Court is, therefore, not inclined to take a liberal or lenient view in the matter for condoning the huge delay of approximately 4 years in filing the appeal and that too by a person, who despite full knowledge of the litigation which can be very well attributed to her or her legal heirs, do not chose to file appeal in time and fail to make any effort to get herself impleaded as a party-defendant before the learned trial court itself within a reasonable time, and after passing of the impugned judgment and decree dated 18.02.2009, in the present first appeal, the appellant has filed an application seeking leave to file the appeal before this Court. The above narration of facts about the non-compliance of the orders passed by this Court, even on procedural side, about filing of amended cause title, after disposal of the application (IA No.3444/14) filed by the applicant under Order 1, Rule 10 CPC in the aforesaid manner reflects badly on the counsel for the appellant in the present first appeal before this Court. 15. With a deep sense of remorse, the Court expresses its anguish for such a casual dealing of the litigation by the parties and their counsel. Such frivolous litigation, of course, cannot be encouraged by the Court and taking a balanced view of the matter also, this Court does not feel inclined to condone the huge delay of 1571 (about 4 years) as pointed out by the office in the present case and the first appeal, therefore, is liable to be dismissed and the Court is also not inclined to grant any leave to the present appellant also to file the present appeal as for the reasons best known to the appellant, which are assumed to be deliberate in case at hand since she did not seek any impleadment before the learned trial court. The application for seeking leave to file present appeal is, therefore, rejected. The appellant has miserably failed to explain and satisfy this Court for sufficient and cogent reasons for seeking condonation of huge delay of 1571 days or about 4 years. 16. The application for seeking leave to file present appeal is, therefore, rejected. The appellant has miserably failed to explain and satisfy this Court for sufficient and cogent reasons for seeking condonation of huge delay of 1571 days or about 4 years. 16. Accordingly, the present first appeal by the third party deserves dismissal as being without leave and as time barred also and the same is hereby dismissed. No costs. A copy of this order be sent to the concerned parties forthwith and the court below forthwith. Appeal Dismissed.