Rajasthan High Court
Kanhiya Lal And Ors vs Ramesh Chand And Ors on 5 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 403/2008
Kanhiya Lal And Anr.
----Appellants
Versus
Ramesh Chand And Ors.
----Respondents
For Appellant(s) : Mr. Ajeet Kumar Sharma, Sr.
Advocate assisted by Mr. Rachit
Sharma through VC
For Respondent(s) : Mr. Aatish Jain
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
05/04/2022
This second appeal has been filed by appellants-defendants
assailing the judgment and decree dated 31.07.2006 passed in
Civil Suit No.76/2002 by Civil Judge (Junior Division), Kathumar
whereby and whereunder the civil suit for possession filed by
respondent No.1-plaintiff has been decreed and the plaintiff has
been allowed to get the possession along with rent/mesne profit
@Rs.300/- per month w.e.f. August, 2002 to delivery of
possession of the suit premise. In the first appeal No.22/2006 filed
by appellants, the judgment for eviction and arrears of
rent/mesne profit has been affirmed vide judgment dated
26.08.2008 passed by Additional District Judge, Laxmangarh,
Alwar. Hence, concurrent findings of fact, this second appeal has
been preferred.
The appellants have filed this second appeal on 03.11.2008.
This Court vide order dated 01.12.2008 issued notices to
(2 of 3) [CSA-403/2008]
respondents and in the meanwhile, the operation of impugned
judgment and decree was stayed subject to ensuring the service
of notices upon respondent-plaintiff. Since thereafter, appellants
have not taken any serious step to ensure service of notices upon
respondents and time and again, this Court has passed orders to
file PF & notices for unserved respondents.
On 14.02.2012, this Court passed peremptory order as
appellants did not file requisite PF & notices despite directions of
this Court. Later on, respondent No.1-plaintiff appeared. It was
disclosed on record that on 08.03.2017 respondent No.2-Babu Lal
has passed away. On the next date of hearing i.e. 17.04.2017,
counsel for appellants prayed for time to file application for
bringing the legal representatives of deceased-respondent Nos.2
and 6 on record. It appears from the order-sheets that appellants
have not taken any step to bring the legal representatives of
deceased-respondent Nos.2 and 6 on record nor the service of
unserved respondents have been affected.
Now appellants have filed application (I.A. No.1/2022)
seeking extension of stay order dated 01.12.2008. It has been
averred that in view of the judgment of Hon'ble Supreme Court in
case of Asian Resurfacing of Road Agency Private Limited
and Another vs. Central Bureau of Investigation reported in
[(2018) 16 SCC 299], the executing court has treated the stay
order dated 01.12.2008 as extinguished due to not extending
after a period of six months.
Learned counsel for appellants has prayed to extend or grant
a fresh stay order in favour of appellants.
This Court made a query from counsel for appellants about
the payment of due arrears of rent and mesne profit as directed
(3 of 3) [CSA-403/2008]
by the trial court in the judgment dated 31.07.2006 but the
counsel for appellants is not in a position to make statement as to
whether appellants have paid arrears of rent/mesne profit or not.
The second appeal is yet to be heard for admission.
It appears that on account of delay and laches on the part of
appellants, the appeal could not be heard for admission as the
appellants did not take appropriate steps to serve the notices
upon unserved respondents. However, it appears by perusal of the
memo of second appeal itself that the contesting respondent is
only respondent No.1-plaintiff in whose favour the judgment and
decree for eviction and rent/mesne profit has been passed. The
respondent Nos.2 to 13 have been impleaded as per-forma
respondents. Thus, even if the respondent No.2 and 6 have
passed away and appellants have not taken any steps to
substitute their legal representatives, the second appeal qua the
respondent No.1-plaintiff-decree holder does not abate. The
unserved respondents are also per-forma respondents. In such
scenario, on request of counsel for appellants, the presence of
respondent Nos.2 to 13 is dispensed with at least for the purpose
of hearing the second appeal for admission.
Considering the conduct of appellants, this Court is not
passing any order on the application (I.A. No.1/2022) and the
same shall be considered at the time of hearing of this second
appeal for admission.
Let this second appeal be listed for admission on
05.05.2022.
(SUDESH BANSAL),J
SAURABH/35
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