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2019 DIGILAW 452 (SC)

Rudaram v. Saroj Devi

2019-02-04

R.BANUMATHI, R.SUBHASH REDDY

body2019
ORDER 1. Leave granted. 2. Being aggrieved by the order dated 19.07.2018 passed by the High Court of Judicature for Rajasthan at Jaipur in S.B. Civil Restoration Application No. 223/2018 in S.B. Civil First Appeal No. 554/2018 in and by which the High Court has declined to condone the delay of 176 days in filing the First Appeal. 3. In the suit filed by the appellants, the appellants sought for cancellation of the sale deed dated 29.01.2010 executed in favour of the first respondent by the third Respondent- Birla Sanskriti Trust, Kolkata. The Civil Suit No. 21/2010 was filed by the appellants-plaintiffs in representative capacity under Order 1 Rule 8. The said suit filed by the appellants was dismissed by the Trial Court. 4. Being aggrieved, the appellants have filed the First Appeal before the High Court which came to be dismissed on 11 th September, 2017. The application filed by the appellants for seeking restoration of the appeal with delay of 176 days was dismissed by the High Court on the ground that delay in filing restoration application has not been satisfactorily explained. 5. We have heard learned counsel for the parties and perused the relevant material. 6. The representative suit was filed by the appellants under Order 1 Rule 8 CPC, seeking cancellation of the sale deed dated 29.01.2010 in favour of the first respondent. According to the appellants, counsel who appeared on behalf of the appellants before the High Court sought for an adjournment on 11.09.2017 and the counsel was under the impression that the matter has been adjourned. On the other hand the appeal came to be dismissed for default by calling the matter in the second round. The appellants filed application for restoration of the appeal along with application to condone the delay of 176 days which came to be dismissed. 7. The delay of 176 days cannot said to be an inordinate delay, more so, when the matter relates to the First Appeal. The appellants having lost before the Trial Court ought to be have fair and reasonable opportunity to pursue their First Appeal. The impugned order of the High Court is, accordingly, set aside and the appeal is allowed. 8. The First Appeal No. 554 of 2016 shall stand restored to its original number before the High Court. The appellants having lost before the Trial Court ought to be have fair and reasonable opportunity to pursue their First Appeal. The impugned order of the High Court is, accordingly, set aside and the appeal is allowed. 8. The First Appeal No. 554 of 2016 shall stand restored to its original number before the High Court. The High Court shall consider the matter after affording opportunity to both the parties and decide the same in accordance with law.