Lrs.Of Loku Ram vs Lrs Of Bihari Lal
2021 Latest Caselaw 16140 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Civil Restoration No. 89/2019

1. Legal Representatives of Loku Ram, S/o Kashi Ram and Zanki Devi w/o Shri Loku Ram, B/c Brahmin, R/o Ward No. 15, Near Durga Mandir, Zaitsar, Tehsil Srivijaynagar, District Sriganganagar (Deceased) 1/1 Ganesh Kumar S/o Shri Loku Ram, aged about 62 years, 1/2. Krishna Devi D/o Shri Loku Ram, aged about 55 years, 1/3. Pushpa Devi D/o Shri Loku Ram, aged about 52 years, 1/4. Shyamlal S/o Shri Loku Ram, aged about 59 years, All B/c Brahmin, R/o Ward No. 15, Near Durga Mandir, Zaitsar, Tehsil Sri Vijaynagar, District Sri Ganganagar.

----Petitioners Versus

1. Legal Representatives of Bihari Lal S/o Shri Mukhram, aged about 53 years B/c Suthar, R/o Ward No. 9, Zaitsar Tehsil Srivijaynagar District Sriganganagar (Deceased) 1/1 Savitri Devi W/o Shri Bihari Lal, aged about 70 years, 1/2 Jagdish S/o Shri Bihari Lal, aged about 55 years, 1/3. Rajesh S/o Shri Bihari Lal, aged about 48 years, 1/4. Rohtash S/o Shri Bihari Lal, aged about 45 years, 1/5. Debu S/o Shri Bihari Lal, aged about 40 years, Presently residing at 3 GSD Ward No. 8 Jaitsar, Tehsil Srivijaynagar, District Sriganganagar.

                                                                ----Respondents


For Petitioner(s)        :     Dr. R.D.S.S. Kharlia
For Respondent(s)        :     Mr. Anil Gupta & Mr. Shreekant Verma


           HON'BLE MR. JUSTICE RAMESHWAR VYAS
                                    Order

25/10/2021

The present application for restoration has been filed under

Order XLI, Rule 19 read with Section 151 C.P.C. by the

defendants-appellants with the prayer for recalling of the Order

dated 07.09.2017 passed by this Court in S.B. Civil Second Appeal

No. 66/2008 (LR's of Loku Ram Vs. Bihari Lal), whereby the

(2 of 5) [CRES-89/2019]

second appeal, against sole respondent - Bihari Lal, was

dismissed as abated.

The facts of the case in short are that plaintiff Bihari Lal,

legal representatives of whom are respondents herein, filed a civil

suit for specific performance of the agreement to sell the property,

which was dismissed by the trial court vide Judgment dated

17.02.2005, however, plaintiff - Bihari Lal was held entitled to

receive double of the consideration amount paid by him to

defendant - Lokuram, whose legal representatives are appellants

herein. Plaintiff - Bihari Lal preferred first appeal against rejection

of his suit, which was allowed by the First Appellate Court vide

Judgment dated 08.01.2008. Aggrieved by the judgment of the

First Appellate Court, legal representatives of defendant -

Lokuram filed second appeal before this Court on on 08.02.2008.

On 28.02.2008, the second appeal was admitted and execution of

the decree impugned passed by the First Appellate Court was

stayed by this Court. The interim stay order granted by this Court

was made absolute during the pendency of the appeal on

04.05.2011. Afterwards, respondent - Bihari Lal (plaintiff herein)

expired on 27.05.2014. However, the information regarding death

of respondent - Bihari Lal was furnished by learned counsel

representing the respondent first time before this Court on

04.08.2017, on which date, at the request of learned counsel for

the appellants, time was granted for taking necessary steps for

substituting legal representatives of sole respondent - Bihari Lal.

On 07.09.2017, the appeal was dismissed as abated on the

ground that the appellants did not take any steps for bringing

legal representatives of the sole respondent on record. Being

aggrieved with the Order dated 07.09.2017, legal representatives

(3 of 5) [CRES-89/2019]

of defendant - Lokuram have filed this application for restoration

praying for recalling the order dated 07.09.2017. Along with

application restoration application, an application under Section 5

of the Limitation Act seeking condonation of delay in filing the

restoration application supported by affidavit of appellant -

Ganesh Kumar, has been filed.

Since the present restoration application has been wrongly

filed under the provisions of Order XLI, Rule 19 C.P.C., an

application under Order VI, Rule 17 read with Section 151 C.P.C.

has been filed by the appellants seeking amendment in the cause

title of the restoration application to the extent that the same may

be read as "restoration application under Order XXII, Rule 4(5)(b)

& 9(2) read with Section 151 C.P.C." instead of "restoration

application under Order XLI Rule 19 read with Section 151 C.P.C.",

which is allowed and the application for restoration is being

decided under amended provisions.

In reply to the restoration application, it has been, inter alia,

averred that counsel for the appellants did not take any steps for

bringing legal representatives of the sole respondent on record as

per order, hence, the appeal was dismissed as abated. The

appellants were aware of the death of plaintiff-respondent - Bihari

Lal. The appellants have intentionally and deliberately caused

delay in taking legal representatives of respondent - Bihari Lal on

record. Hence, the delay cannot be condoned.

Heard learned counsel for the parties on the applications and

perused the material on record.

Learned counsel for the appellants while relying upon the

judgments of the Hon'ble Apex Court in the cases of Banwari Lal

(D) by LR's and Anr. Vs. Balbir Singh (AIR 2015 Supreme

(4 of 5) [CRES-89/2019]

Court 3573) and Prahlad Shankarrao Tajale and Ors. Vs.

State of Maharashtra through its Secretary (Revenue) and

Anr. (AIR 2018 Supreme Court 1313), contends that legal

representatives of respondent - Bihari Lal could not be brought on

record on account of lack of knowledge regarding names of legal

representatives of the respondent. The appellants tried their best

in this regard, however, when the execution proceeding was

instituted against them, they came to know the names of legal

representatives of respondent - Bihari Lal and afterwards, they

immediately filed this restoration application.

On the contrary, learned counsel for the respondents

contends that the appellants are not bonafide in filing the

application. The Gram Panchayat had issued certificate regarding

legal representatives of respondent - Bihari Lal on 16.07.2014.

The appellants could get the necessary information under Right to

Information Act, 2005 also.

Having regard to the rival submissions of the learned counsel

for the parties and the law laid down by the Hon'ble Apex Court in

the judgments referred above, so also after perusal of the record,

it emerges that the information of death of respondent - Bihari Lal

for the first time was given by his pleader before this Court on

04.08.2017. On that day, the appellants sought time to take

requisite steps in this regard. However, on the next date i.e.

07.09.2017, the second appeal filed by the appellants was

dismissed as abated. It is true that after receiving the information

regarding death of respondent - Bihari Lal, the appellants failed to

file requisite application within time. This restoration application

has been filed by the appellants on 05.03.2019 after almost 19

months. The reasons furnished by the appellants for delay

(5 of 5) [CRES-89/2019]

occasioned in filing this application have been mentioned in the

application. As per the averments in the application, they came to

know about the names of legal representatives of deceased

respondent - Bihari Lal only after execution proceedings were filed

against them.

The second appeal sought to be restored, relates to the

rights in the immoveable property. The First Appellate Court

reversed the judgment of the trial court and decreed the suit of

plaintiff - Bihari Lal for specific performance of agreement. In the

considered opinion of this Court, it would not be justified to deny

the appellants an opportunity to get their second appeal decided

on merits merely on the procedural aspects of law. As held by the

Hon'ble Apex Court in the various judgments, the provisions of

Order XXII C.P.C. are not penal in nature. It is rule of procedure

and substantial rights of the parties cannot be defeated by

pedantic approach by observing strict adherence to procedural

aspects of law.

In the facts and circumstances of the case and in the interest

of justice, the application under Section 5 of the Limitation Act

filed by the appellants is allowed. The delay occasioned in filing

the application under Order XXII, Rule 4(5)(b) & 9(2) read with

Section 151 C.P.C. is condoned. The restoration application is also

allowed and the order of abatement dated 07.09.2017 passed by

this Court is recalled. The second appeal is restored to its original

number.

Office to proceed accordingly.

(RAMESHWAR VYAS),J 42-Inder/-

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