Rajasthan High Court
Mohammad Shamim S/O Imdadulla ... vs Rafiq S/O Hidayatulla on 21 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 12/2022
1. Mohammad Shamim S/o Imdadulla Khan, Aged About 72
Years, R/o Mohalla Wajirbagh At Present Resident Of 152,
Pratapkhand, Vishwakarma Nagar, Jhilmil Colony,
Shahdara Delhi.
2. Amerulla Khan S/o Imdadulla Khan, Aged About 67 Years,
R/o Mohalla Wazirbagh At Present Resident Of 1107/1,
Punjabi Phatak Haveli, Hisamuddin Haider, Ballimaran
Delhi.
3. Sageera D/o Imdadulla Khan, Aged About 60 Years, R/o
Wazirbagh Tonk At Present Resident Of 3081 Kuncha
Pandit, Shahganj Chowk Delhi.
4. Fareeda D/o Imdadulla Khan, Aged About 49 Years,
Resident Of Wazirbagh Tonk At Present Resident Of T-181,
Model Basti Samjhansi Road, Chawni Bazaar, Delhi
5. Gayasuddin @ Sabir Son Of Majuruddin, Aged About 50
Years, R/o Near Higher Secondary School Tonk
6. Shakir Ali S/o Manjuruddin, Aged About 62 Years, R/o
Ekramuddin Khan Ke Haveli, Mohalla Rajban Tonk
----Appellants
Versus
1. Rafiq S/o Hidayatulla, aged 45 years R/o At Present
Behind Golcha Cinema Dariyaganj Delhi.
2. Jebuninsa D/o Hidayatulla W/o Arif Musalman, Aged
About 47 Years, Resident Of Behind The Golcha Cinema,
Dariyaganj Delhi.
3. Kanjo W/o Niyamtulla Khan, Aged About 70 Years, R/o
Mohalla Jama Masjid, Behind Bada Kua Mohalla Shagird
Pesha Tonk
4. Sadat Ali S/o Mumtaj Ali, aged 42 years R/o Near Muneer
Khan Ke Masjid Tonk
5. Rupana D/o Mumtaj Ali W/o Javed, Aged About 45 Years,
At Present Resident Of Shaheen Bagh, E-99, New Delhi.
6. Shabana D/o Mumtag Ali Musalmaan, Aged About 36
Years, R/o Shaid Bagh, E-99, New Delhi
(Downloaded on 24/03/2022 at 08:38:23 PM)
(2 of 4) [CSA-12/2022]
7. Rubina D/o Mumtag Ali Musalman, Aged About 36 Years,
R/o Shahid Bagh, E-99, New Delhi.
8. Ajija W/o Mumtaj Alia, Aged About 37 Years, R/o Near
Muneer Khan Ke Maszid Tonk
9. Premnarayan S/o Bhanwarlal, Aged About 65 Years, R/o
Wazirbagh Tonk
----Respondents
For Appellant(s) : Mr. Rajkumar Suthar
For Respondent(s) : Mr. Abhi Goyal-Caveator (for
respondent No.4)
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
21/03/2022
The appellants, by way of this second appeal, want to assail
the decree of partition dated 08.07.1981 passed by Judicial
Magistrate Tonk (Raj.) in Civil Suit No.101/1974. The parties had
settled the dispute of partition by way of compromise and on the
basis of compromise, the trial Court passed the judgment and
decree dated 08.07.1981.
After expiry of near about 37 years, legal representatives of
defendants No.1 and 3 sought to challenge the compromise and
the decree of partition dated 08.07.1981, on the ground that the
defendants No.1 and 3 did not sign the compromise deed and only
their advocate gave consent to the compromise.
The First Appellate Court heard the appellants on the issue of
delay as the first appeal was filed after expiry of an exorbitant and
inordinate delay of 37 years. The First Appellate Court did not
found any sufficient reason to condone the delay of 37 years and
dismissed the appeal vide judgment and decree dated
(3 of 4) [CSA-12/2022]
03.09.2021, holding that on behalf of defendants No.1 and 3, their
advocate Mr. Taufiq Hasan had filed Vakalatnama way back on
27.01.1975. The compromise regarding the partition was arrived
at in the year 1981. For about 7 years, defendants No.1 and 3 did
participate in the proceedings of the suit for partition, through
their advocate.
In these circumstances, it was not believed by the First
Appellate Court that the defendants No.1 and 3 were not having
knowledge about the civil suit for partition and the compromise
entered into, as well as about the judgment and decree of
partition dated 08.07.1981 passed on the basis of compromise.
Except the reason regarding "no knowledge", no other reason has
been assigned for seeking condonation of delay of 37 years.
Hon'ble Supreme Court in the case of P.K. Ramachandran
Vs. State of Kerala & Anr. [(1997) 7 SCC 556] has held as
under:-
"Law of limitation may harshly affect a particular
party but it has to be applied with all its rigour
when the statute so prescribes and the courts have
no power to extend the period of limitation on
equitable grounds. The discretion exercised by the
High Court was, thus, neither proper nor judicious.
The order condoning the delay cannot be
sustained."
In the case of Popat Bahiru Govardhane & Ors. Vs.
Special Land Acquisition Officer & Anr. [(2013) 10 SCC 765]
it was held by Hon'ble Apex Court as under:-
"The law of limitation may harshly affect a
particular party but it has to be applied with all its
rigour when the statute so prescribes. The court has
no power to extend the period of limitation on
equitable grounds. The statutory provision may
cause hardship or inconvenience to a particular
party but the court has no choice but to enforce it
(4 of 4) [CSA-12/2022]
giving full effect to the same. The legal maxim dura
lex sed lex which means "the law is hard but it is
the law", stands attracted in such a situation. It has
consistently been held that, "inconvenience is not" a
decisive factor to be considered while interpreting a
statute."
Learned counsel for the appellant could not point out any
illegality or jurisdictional error in dismissal of the first appeal on
the ground of limitation. No better explanation has been shown
before this Court to condone the delay of 37 years in filing the first
appeal, more particularly, same was filed to assail the decree
passed on the basis of compromise.
This Court is of the considered opinion that the dispute of
partition between the parties had set at rest, by way of
compromise way back in the year 1981, and now there is no
justified reason to reopen the dispute again on such invalid
ground, as alleged by the appellants.
In these facts and circumstances, no substantial question of
law arises in the present second appeal. In absence of any
substantial question of law, the second appeal cannot be
entertained.
Accordingly, the present second appeal is bereft of merits
and is hereby dismissed. Stay application as well as any pending
applications also stand disposed of.
(SUDESH BANSAL),J
AARZOO ARORA /18
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