Rajasthan High Court - Jodhpur

Bagdi Ram vs Ramesh Chand on 30 March, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 53/2019

1. Bagdi Ram S/o Shri Meghraj, Aged About 75 Years, B/c Patidar, R/o Village Arnoda, Tehsil Nimbahera, District Chittorgarh.

2. Babu Lal S/o Shri Meghraj, Aged About 60 Years, B/c Patidar, R/o Village Arnoda, Tehsil Nimbahera, District Chittorgarh.

3. Banshi Lal S/o Shri Bagdi Ram, Aged About 48 Years, (Non Petitioner Has Wrongly Mentioned The Name As Meghraj) B/c Patidar, R/o Village Arnoda, Tehsil Nimbahera, District Chittorgarh.

4. Gopal S/o Shri Babulal, Aged About 36 Years, B/c Patidar, R/o Village Arnoda, Tehsil Nimbahera, District Chittorgarh.

----Petitioners Versus

1. Ramesh Chand S/o Shri Meghraj, B/c Patidar, R/o Village Arnoda, Tehsil Nimbahera, District Chittorgarh.

2. Om Prakash S/o Shri Ramesh Chand, B/c Patidar, R/o Village Arnoda, Tehsil Nimbahera, District Chittorgarh.

                                                                ----Respondents


For Petitioner(s)         :     Mr. S.L. Jain.
For Respondent(s)         :     Mr. V.N. Kalla.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

30/03/2021

This revision petition is directed against the order dated

03.12.2018 passed by the Civil Judge, Nimbahera, District -

Chittorgarh ('the trial court'), whereby the application filed by the

respondents for restoration of application under Order XXXIX, Rule

2A CPC, has been allowed.

(2 of 7) [CR-53/2019]

The respondents had filed an application under Order XXXIX

Rule 2A CPC alleging violation of temporary injunction granted by

the trial court. During pendency of the proceedings, on

23.11.2016, when the matter was fixed for evidence of the

respondents, neither they were present nor their counsel was

present and as such the application filed under Order XXXIX, Rule

2A CPC was dismissed for non-prosecution.

Application was filed on 18.05.2017 seeking restoration of

the proceedings with the submissions that as various cases

between the parties were pending and in all the cases 23.11.2016

was fixed and the same were adjourned. However, qua the case

filed under Order XXXIX, Rule 2A CPC, date in the matter was not

taken by the counsel and as such for non-appearance of the

counsel and the applicants, the application was dismissed. It was

prayed that the same be restored.

A reply to the application was filed with the contentions that

the application was highly belated without indicating any

particulars and that the same was not accompanied by an

application under Section 5 of the Limitation Act seeking

condonation of delay and, therefore, the application was liable to

be dismissed.

The trial court by its order dated 03.12.2018 accepted the

application filed by the respondents on payment of cost and made

the same condition precedent for restoration of the proceedings.

Feeling aggrieved, the present petition has been filed.

Learned counsel for the petitioners emphasized that as the

application was apparently barred by limitation and the same was

not accompanied by application under Section 5 of the Limitation

(3 of 7) [CR-53/2019]

Act, the order impugned is bad in law and the same deserves to

be quashed and set aside.

Submissions were made that the observations made the trial

court that for non-filing of application seeking condonation of

delay, the party cannot be deprived of justice on technical ground

are ex-facie incorrect and as such the petition should have been

dismissed on that count alone.

Further submissions were made that even the indications

made in the application did not made out a case of sufficient cause

and as such application was liable to be dismissed as barred by

limitation and on merits as well.

Submissions were made that only on account of hardship or

injustice, the proceedings could not have been restored.

Reliance was placed on Damodaran Pillai & Ors. v. South

Indian Bank Limited : AIR 2005 SCW 4603.

Further submissions were made that application was restored

on pre-condition of payment of cost, however, the cost has not

been paid.

Learned counsel for the respondents contested the

submissions. It was submitted that the trial court was justified in

coming to the conclusion that even if the application seeking

condonation of delay was not made, as respondents were able to

make out a case for condonation and for restoration of the

proceedings, the same could not be dismissed only on account of

non-filing of application under Section 5 of the Limitation Act.

Reliance was place on Sesh Nath Singh & Anr. v. Baidyabati

Sheoraphuli Co-operative Bank Ltd. & Anr.: Civil Appeal No.

9198/2019, decided on 22.03.2021 by Hon'ble Supreme Court.

(4 of 7) [CR-53/2019]

Further submissions were made that the cost as imposed

was offered, however, the same was not accepted on account of

pendency of the revision petition and, therefore, now the

respondents have filed an application with the trial court to

deposit the cost.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The facts are not in dispute wherein the proceedings initiated

by respondents under Order XXXIX, Rule 2A CPC were dismissed

for non-prosecution as neither the counsel nor the respondents

appeared before the court on 23.11.2016.

In the application filed seeking restoration, the reason

indicated was that as in the various matter pending between the

parties, dates were fixed on 23.11.2016 and the said matters

were adjourned, however, counsel forgot to take date in the said

application, which led to dismissed of the case for non-

prosecution.

It is also not in dispute that though the application was

barred by limitation, the application seeking condonation of delay

has not been filed alongwith the application.

The trial court after hearing the parties, came to the

conclusion that the reason indicated for non-appearance was

acceptable as the requirement of sufficient cause must be liberally

construed and a party must not be deprived of contesting the case

unless there is gross negligence or misconduct.

Regarding the aspect of non-filing of application seeking

condonation of delay, the Court came to the conclusion that for

(5 of 7) [CR-53/2019]

the said technical reason, a party cannot be deprived of getting

justice and, consequently, accepted the application.

On the aspect of insisting of filing application seeking

condonation of delay and the fate of such an application/appeal,

which is not accompanied by application seeking condonation of

delay, it has been inter alia laid down by Hon'ble Supreme Court in

the case of Sesh Nath Singh (supra) as under:-

"63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application.

64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application."

(6 of 7) [CR-53/2019]

In view of the law laid down by Hon'ble Supreme Court that

there is no bar to exercise discretion to condone delay in absence

of a formal application and that the Court can always insist that an

application or an affidavit showing cause of delay be filed.

As the trial court has exercised its discretion in not insisting

for an application/affidavit explaining the delay in filing the

application, in view of the above judgment, it cannot be said that

the trial court committed any error in passing the order impugned

despite the fact that the application was delayed.

So far as the submissions made seeking to question the

validity of the cause given for condonation of delay is concerned,

as already noticed that the trial court has found the reason as

justified and has therefore restored the proceedings to its original

number.

Once the trial court has come to the conclusion that the

proceedings were liable to be restored back, unless gross illegality