Rajasthan High Court - Jodhpur
Shankar Das vs Inder Singh on 16 September, 2022
Bench: Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil First Appeal No. 238/2021
Shankar Das
----Appellant
Versus
Inder Singh
----Respondent
For Appellant(s) : Mr. Ganga Ram Bhari.
For Respondent(s) : Mr. R.S. Choudhary.
Mr. Sumer Singh Gaur.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
16/09/2022
An application for recalling of the order dated 01.08.2022
has been filed on behalf of the respondent stating, inter alia, that
the present first appeal was listed before the Court on 01.08.2022
to consider Application No. 01/2021 dated 12.08.2021 and
Application No. 01/2022 dated 25.07.2022 seeking condonation of
delay in filing the present first appeal and early listing of the
petition respectively on behalf of the appellant.
Though, the application for early hearing was allowed by the
Court but on an objection raised by the learned counsel for the
respondent, the Application No.01/2021 dated 12.08.2021 was
postponed to 16.08.2021. It has been, thus, prayed that the order
dated 01.08.2022 may be recalled to the extent of allowing the
application, seeking condonation of delay, filed under Section 5 of
the Limitation Act.
A reply to the aforesaid application has been filed by the
appellant wherein, it is stated that on 01.08.2022, the Court, after
(2 of 3) [CFA-238/2021]
hearing the arguments, allowed both the application and,
therefore, the present application for recalling of the order dated
01.08.2022 deserves to be rejected.
An application has been filed by the appelant seeking
condonation of delay in filing of the first appeal. It has been stated
in the application that the delay has occasioned in filing of the first
appeal because the counsel representing the appellant before the
Trial Court did not inform about passing of the judgment and
decree dated 25.01.2019 by the learned Additional District Judge
No.2, Nohar, District Hanumangarh in Regular Civil Case No.
11/2016 (24/2013) (CIS No. 60/2014) titled as "Indra Singh Vs.
Shankerdas & Anr." to the appellant. The appellant was informed
about judgment and decree dated 25.01.2019 in the month of
January, 2020 but due to health ailments and also due to
prevailing COVID-2019 Pandemic, the appellant could not contact
his counsel at Jodhpur well within time for filing of the first appeal.
It was thus, prayed that the delay in filing of the first appeal may
be condoned.
In reply to the aforesaid application, it was stated by the
respondent that the judgment and decree dated 25.01.2019 was
passed in the presence of the learned counsel representing the
appellant. Subsequently, the execution petition was filed on
17.07.2019 and the learned counsel representing the appellant
appeared before the Trial Court after 18.01.2020 and on all the
subsequent dates thereafter. Therefore, in light of the above
submissions, it cannot be said that the appellant had no
knowledge about passing of the judgment and decree against him.
Heard learned counsel for the parties and scanned through
the entire record of the case.
(3 of 3) [CFA-238/2021]
The appellant in the application filed under Section 5 of the
Limitation Act has taken a categorical stand that the information
regarding passing of the judgment and decree dated 25.01.2019
was supplied to him by his counsel in the month of January, 2020
and due to illness and prevailing COVID-2019 Pandemic, he could
not instruct his counsel at Jodhpur to file the first appeal.
Hon'ble the Supreme Court, looking to the out-break of the
COVID-2019 Pandemic in the case of In Re: Cognizance for
Extension of Limitation: Misc. Application 21/2022 directed
that the period 15.03.2020 till 28.02.2022 shall stand excluded for
the purposes of limitation as may be prescribed under any general
or special laws in respect of all judicial or quasi judicial
proceedings. It is also settled proposition of law that a person
cannot be permitted to suffer due to negligence and/or fault on
the part of his Advocate.
In view of the discussions made hereinabove, no ground for
recalling of the order dated 01.08.2022 is made out.
Resultantly, the application seeking recalling of the order
dated 01.08.2022 is rejected.
(KULDEEP MATHUR),J
20-Mohan/-
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