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Rajasthan High Court · body

2021 DIGILAW 2050 (RAJ)

Shanti Devi v. Lakshmi Devi

2021-10-28

RAMESHWAR VYAS

body2021
JUDGMENT Rameshwar Vyas, J. - This civil misc. appeal under Order XLIII, Rule 1 of the Code of Civil Procedure has been preferred by appellants against the Order dated 28.07.2020 passed by Additional District Judge No. 1, Abu Road, District Sirohi in Civil Misc. Case No. 15/2020, whereby applications filed under Order IX, Rule 9 C.P.C. as well as Section 5 of the Limitation Act by appellants have been dismissed. 2. Brief facts of the case in short are that appellants preferred the first appeal against the Judgment and Decree dated 25.05.2016 passed by Civil Judge, Pindwara, District Sirohi, before the court of Additional District Judge No. 1, Abu Road, District Sirohi on 02.06.2016. On 11.12.2019, the appeal was dismissed on account of non-appearance of the counsel representing the appellants before the First Appellate Court. An application under Order IX, Rule 9 C.P.C. along with application under Section 5 of the Limitation Act seeking to condone delay in filing application and setting aside dismissal of first appeal were moved by appellants on 03.07.2020, which were rejected vide impugned Order dated 28.07.2020 by the First Appellate Court on the ground that no reason has been assigned for non-appearance of the counsel representing the appellants on the relevant date i.e. 11.12.2019; appellants have filed the application for setting aside dismissal of the appeal after lapse of 7 months, for which no reasonable cause has been shown; affidavit of the counsel representing the appellants has also not been filed in support of reasons mentioned in the application. On the above grounds, the First Appellate Court has dismissed the application as barred by limitation. Being aggrieved by Order dated 28.07.2020, this appeal has been filed by appellants. 3. Heard learned counsel for the appellants and perused the material on record. 4. Learned counsel for the appellants has submitted that reasons for non-appearance of the counsel representing the appellants before the First Appellate Court were bonafide. He, therefore, prays to restore the appeal, for which he is ready to bear the reasonable cost. 5. On the contrary, learned counsel for the respondents has submitted that in the present case, the provisions of Order IX, Rule 9 C.P.C. are not applicable. There was no reason for non-appearance of the counsel representing the appellants before the First Appeal Court on the relevant date. There is no ground to condone the delay in filing the restoration application. 6. There was no reason for non-appearance of the counsel representing the appellants before the First Appeal Court on the relevant date. There is no ground to condone the delay in filing the restoration application. 6. The controversy involved in the main suit relates to immovable property. In the considered opinion of this Court, the appellants cannot be deprived from getting decision of their first appeal on merits on account of alleged act of negligence on the part of the counsel representing them in not attending the court proceedings on the relevant date. It is relevant to mention here that in the year 2020, the Court proceedings in all over India were adversely affected on account of outburst of pandemic of novel corona virus (COVID-19). 7. The Hon’ble Supreme Court in the case of In Re Cognizance for Extension of Limitation (SMW [C] No. 03/2020), due to the onset of COVID-19 pandemic, took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State) and by an order dated 23.03.2020, extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 23.03.2020 was extended from time to time. 8. In the above circumstances, order impugned passed by First Appellate Court dismissing the application under Section 5 of the Limitation Act and consequently, the application under Order IX, Rule 9 C.P.C. as barred by limitation, cannot be sustained. Hence, the same is liable to be set aside and for the reasons mentioned in the application under Order IX, Rule 9 C.P.C., the same deserves to be allowed. 9. Accordingly, the civil misc. appeal is allowed. The impugned Order dated 28.07.2020 passed by Additional District Judge No. 1, Abu Road, District Sirohi is set aside and the appeal preferred by appellants bearing Civil Appeal No. 16/2016 (Smt. Shanti Devi & anr. Vs. Smt. Laxmi Devi & anr.) is ordered to be restored to its original number subject to depositing the cost of Rs. 5,000/- by appellants to be paid to the respondents.