Rajasthan High Court
Ganesh Narain Mathur vs Kuldeep Narain Mathur on 3 February, 2023
Bench: Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 320/2001
Ganesh Narain Mathur S/o Sh. Chand Narain Mathur, R/o Plot
No.A/1 Ramlal Sen colony, Power house road, Jaipur.
----Appellant
Versus
Kuldeep Narain Mathur S/o Chand Narain Mathur, R/o plot
No.A/1 Ramlal Sen Colony, power house, Road, jaipur.
----Respondent
For Appellant(s) : Mr. Akash Gupta
Mr. Rishabh Bhidagra
For Respondent(s) : Mr. Nikhil Simlote with Mr. Divyansh
Mathur
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
03/02/2023
Matter comes up on an application (1/2019) filed by the
respondent under Order 22 Rule 9 CPC for abatement of appeal on
account of death of sole respondent Kuldeep Narain Mathur.
Learned counsel for the respondent submits that sole
respondent Kuldeep Narain Mathur had expired on 24.2.2013. The
appellant is real brother of the deceased respondent-Kuldeep
Narain Mathur and is residing in the same premises as such he is
aware of the death of Kuldeep Narain Mathur.
On the other hand, learned counsel for the appellant submits
that he has filed an application under Order 22 Rule 4 CPC for
substitution of LRs of sole respondent- Kuldeep Narain Mathur.
Along with said application, an application under Order 22 Rule 9
CPC has been filed for setting aside the abatement. An application
(2 of 3) [CFA-320/2001]
u/s 5 of the Limitation Act has also been filed for condonation of
delay. He further submits that application under Order 22 Rule
10A CPC was not filed informing the death of the respondent.
In support of his contentions, he has placed reliance on the
judgment passed by this court in the case of Narmada Shankar vs.
Bajrang Lal & anr. reported in S.B. Civil Misc. Appeal No.225/2002
decided on 19.1.2005.
Admittedly, sole respondent- Kuldeep Narain Mathur had died
on 24.2.2013 whereas the application under Order 22 Rule 4 CPC
has been filed on 16.8.2019.
The reasons given in the application u/s 5 of the Limiation
Act reproduced as under:-
"That the appellant was not aware about the
legal procedure of the court. That appellant is
senior citizen and age of 68 years. That it is
very difficult for the appellant at the age of 68
to go and meet the counsel regularly. That the
present appeal has already been admitted and
same was pending in due course. No
information under Order 22 Rule 10A was
supplied by counsel for the respondent. That
on 23.7.2019 respondent moved an application
under Order 22 Rule 9 CPC then counsel for
the appellant wrote a letter to appellant and
informed him about the death of sole
respondent."
It is an admitted fact that appellant and respondent are real
brothers and both were residing in the same house.
Entirely, vague averments made in the application u/s 5 of
the Limitation Act and no justified explanation has been given for
filing of the application under Order 22 Rule 4 read with under
Order 22 Rule 9 CPC and u/s 5 of the Limitation Act belatedly i.e.
after a lapse of 5 and a half years from the date of death of the
sole respondent.
(3 of 3) [CFA-320/2001]
Consequently, applications under Order 22 Rule 4 CPC, 22
Rule 9 CPC and Section 5 of the Limitation Act are dismissed and
application No. 1/2019 is allowed.
Resultantly, appeal stands abated.
(NARENDRA SINGH DHADDHA),J
Brijesh 20.
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