Rajasthan High Court

Pratap vs Jagmal Through His Lrs And Ors on 5 October, 2023

Bench: Ganesh Ram Meena

[2023:RJ-JP:24351]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 23516/2017

Pratap S/o Chandra Ram, R/o Village Farat, Tehsil Chirawa, Dist.
Jhunjhunu
                                                                       ----Petitioner
                                     Versus
1.       Jagmal S/o Gopal (deceased) through LRs-


         1/1. Surendra Singh S/o Jagmal, R/o Village Farat, Tehsil
         Chirawa, Dist. Jhunjhunu
         1/2. Ashok Kumar S/o Jagmal, R/o Village Farat, Tehsil
         Chirawa, Dist. Jhunjhunu
         1/3 Santosh S/o Jagmal, R/o Village Farat, Tehsil Chirawa,
         Dist. Jhunjhunu
         1/4. Sushila D/o Jagmal, R/o Village Farat, Tehsil Chirawa,
         Dist. Jhunjhunu
         1/5. Kamla S/o Jagmal, R/o Village Farat, Tehsil Chirawa,
         Dist. Jhunjhunu
         1/6. Vimla S/o Jagmal, R/o Village Farat, Tehsil Chirawa,
         Dist. Jhunjhunu
2.       Karan Singh S/o Sheo Chand,                  R/o Village Farat, Tehsil
         Chirawa, Dist. Jhunjhunu
3.       Mahendra Singh S/6 Sheo Chand,                           R/o Village Farat,
         Tehsil Chirawa, Dist. Jhunjhunu
4.       Sumitra W/o Ramotar, R/o Village Chhota Bhadunda,
         Tehsil And Distt. Jhunjhunu
5.       Nani Bai W/o Dharampal, R/o Village Chhota Bhadunda,
         Tehsil And Dist Jhunjhunu
6.       Savitri W/o Ishwar Singh, R/o Village Chhota Bhadunda,
         Tehsil And Dist Jhunjhunu
7.       Mohar Singh S/o Bhagwaan Ram, R/o Village Farat, Tehsil
         Chirawa, Dist. Jhunjhunu
8.       Sher Singh S/o Late Bhagwaan Ram, R/o Village Farat,
         Tehsil Chirawa, Dist. Jhunjhunu
9.       Subhash S/o Late Bhagwaan Ram, R/o Village Farat,
         Tehsil Chirawa, Dist. Jhunjhunu
10.      Shakuntla D/o Late Bhagwaan Ram, R/o Village Farat,

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         Tehsil Chirawa, Dist. Jhunjhunu
11.      Vinod D/o Late Bhagwaan Ram, R/o Village Farat, Tehsil
         Chirawa, Dist. Jhunjhunu
12.      Ishwar       S/o        Maidhan,     R/o        Village     Barda,     Tehsil
         Mahendragarh, Dist- Mahendragarh, Haryana
13.      Dayanand          S/o    Maidhan          R/o     Village    Barda,    Tehsil
         Mahendragarh, Dist- Mahendragarh, Haryana
14.      Chando        W/o        Ishwar,     R/o        Village     Barda,     Tehsil
         Mahendragarh, Dist- Mahendragarh, Haryana
15.      Hava Singh S/o Norang Ram, R/o Village Barda, Tehsil
         Mahendragarh, Dist- Mahendragarh, Haryana
16.      Raghuveer S/o Norang Ram, R/o Village Barda, Tehsil
         Mahendragarh, Dist- Mahendragarh, Haryana
17.      Jagdish S/o Norang Ram, R/o Village Barda, Tehsil
         Mahendragarh, Dist- Mahendragarh, Haryana
18.      Indro       W/o    Hava      Singh        R/o    Village     Barda,    Tehsil
         Mahendragarh, Dist- Mahendragarh, Haryana
19.      Mayapati      R/o        Village   Farat,        Tehsil     Chirawa,    Dist.
         Jhunjhunu
20.      Mahadi D/o Late Gopal, R/o Village Farat, Tehsil Chirawa,
         Dist. Jhunjhunu
                                                          ..Respondents/Plaintiffs

21. Randhir S/o Late Jainarayan, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

22. Satveer S/o Late Jainarayan, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

23. Kamla W/o Ram Singh, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

24. Devkaran S/o Late Ganpati Ram, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

25. Jugti S/o Late Ganpat Ram, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

26. Raje Ram S/o Late Ganpat Ram, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

27. Sharwani S/o Late Ganpat Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

28. Chhoti S/o Late Ganpat Ram, R/o Village Farat, Tehsil

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Chirawa, Dist. Jhunjhunu

29. Rawat Adopted Son Of Late Shri Chandra Ram, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

30. Chinma Ram S/o Sultan, R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

31. Dalip S/o Sultan R/o Village Farat, Tehsil Chirawa, Dist.

Jhunjhunu

32. Gurdayal S/o Sultan R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

33. Suraj Kumar W/o Surat Singh R/o Village Richpal Ki Dhani, Suhasda Haryana

34. Sharbati W/o Surat SinghVillage Richpal Ki Dhani, Suhasda Haryana

35. Naraini D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

36. Katiya D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

37. Jadai D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

38. Materi D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

39. Sajjna D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

40. Nani Bai D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

41. Shama Kaur D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

42. Ved Kaur D/o Chandra Ram R/o Village Farat, Tehsil Chirawa, Dist. Jhunjhunu

43. State Of Rajasthan Through Tehsildar, Chirawa

----Proforma Respondents

For Petitioner(s) : Mr. Ajatshatru Mina with Mr. Rajat Choudhary Mr. Harshvardhan Singh Jodha Mr. Movil Jeen Wal For Respondent(s) : Ms. Sonal Meena

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HON'BLE MR. JUSTICE GANESH RAM MEENA

Order

Date of Reserve ::: July 21, 2023 Date of Pronouncement ::: October 05, 2023

1. The facts in brief requiring for

adjudication to the issue involved in the

present writ petition are that the

respondents /plaintiffs Jagmal Singh & others

filed a suit in the Court of learned Sub

Divisional Officer, Jhunjhunu, for partition in

the ratio of 1/3 and 2/3 of the land bearing

Khasra No.9/2 measuring 3 bigha 10 biswa, khasra

No.13/1 measuring 102 bigha 10 biswa and khasra

No.163 measuring 8 bigha 1 biswa situated at

Village Farat, Tehsil Chirawa, District

Jhunjhunu. On 30.08.1988 ex-parte proceeding

were ordered against the petitioner/ defendants

and the matter was fixed for the evidence of the

plaintiffs. The Court of Assistant Collector,

Chirawa (for short 'the trial court') after

taking into consideration the plaintiffs

evidence passed an ex-parte judgment and

preliminary decree on 05.09.1988.

In the revenue suit it was averred that

the plaintiffs and the defendants were belonging

to the same family. The dispute was in regard to

their ancestral property and both the parties

were in continuous possession of the same from

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the time of their ancestors. It was stated that

Ganpat and Chandra Ram were elders in the family

and as such they were Karta thereof. During the

lifetime of Chandra Ram, Gopal and Ganpat, the

parties were cultivating the disputed land

jointly by mutual arrangement. In that situation

the legal partition of the land between the

parties did not take place. It was stated that

mutation No.64 of the disputed land was entered

in the name of Chandra Ram s/o Shri Ramlal

without the knowledge of the plaintiffs and

contrary to their interest. When the plaintiffs

came to know about the attestation of the

mutation which is alleged to be done by

collusion and without any basis as all the legal

heirs of Chandra Ram had equal shares in the

disputed land and the ancestors of these of

three were entitled to 1/3rd share out of the

total land, they have filed the suit for

partition.

2. By the ex-parte judgment and preliminary

decree dated 05.09.1988, the Tehsildar, Chirawa

was ordered to perform the decree of partition

of the subject property in the ratio of 1/3 to

plaintiff Jagmal, 1/3 to Chandraram and 1/3 to

Ganpat, the operative portion of which is

reproduced as under:-

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"vr% okn oknhx.k fMfØ fd;k tkdj oknhx.k dks Hkwfe [k0 ua0 9@2 jdck 3 ch?kk 10 fcLok] [ka0 ua0 13@1 jdck 102 ch?kk 10 fcLok o [ka0 ua0 163 jdck 8 ch?kk 1 fcLok okds xzke QjV dk oknhx.k dks 1@3 fgLls dk [kkrsnkj dk"rdkj ?kksf'kr fd;k tkrk gS o oknhx.k 1@3 fgLlk dk caVokjk fd;k tkrk gS tks rglhynkj fpM+kok dks rgjhj tkjh gks fd og ekSds ij tkdj oknhx.k o izfroknhx.k dh Hkwfe [ka0 ua0 9@2 jdck 3 ch?kk 10 fcLok [k0 ua0 13@1 jdck 102 ch?kk 10 fcLok [k0 ua0 163 jdck 8 ch?kk 1 fcLok ekSds ij tkdj caVokjk fd;k tkdj cVokjs dh fjiksVZ U;k;ky; ess is"k djs bl lac/a k esa izkjafHkd fMØh tkjh dh tkosaA blh ds vuqlkj [krkSuh vyx&vyx dh tkosaA"

3. Being aggrieved by the ex-parte judgment

and the preliminary decree dated 05.09.1988

passed by the trial court, the defendants Rawat

and Pratap preferred an appeal in the Court of

learned Revenue Appellate Authority, Sikar (for

short 'the First Appellate Authority'), which

was allowed vide judgment dated 07.01.1989

thereby setting aside the ex-parte judgment and

preliminary decree dated 05.09.1988 passed by

the trial court, the operative portion of which

is reproduced as under:-

"geus mijksDr cgl ij euu fd;k ,o v/khuLFk U;k;ky; dh i=koyh o bl U;k;ky; dh i=koyh dk v/;;u fd;k tks Li'V gS fd vihykUVl dk Lo0 firk pUnzk gh fooknkLin Hkwfe;ksa dk rukg [kkrsnkj d`'kd FkkA bl rF; dks fMliz;w djus ds fy, [email protected] n~okjk bl U;k;ky; vFkok v/khuLFk U;k;ky; esa dksbZ Hkh vfHkys[k vFkok lk{; izLrqr ugha fd;k gSA v/khuLFk U;k;ky;

esa okn dh iqf'V esa ,d ek= ekSf[kd lk{; izLrqr dh xbZ gS tks Lo;a oknh txeky dh gS] ftldk dksjkscksjs"ku vU; fdlh Hkh ekSf[kd vFkok

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fyf[kr lk{; n~okjk ugha fd;k x;k gSA ,slh fLFkfr esa [email protected] dk okn fdlh Hkh izdkj ls v/khuLFk U;k;ky; esa izekf.kr ugha gSA v/khuLFk U;k;ky; n~okjk jsLiksMUs V n~okjk izLrqr okn dh dksbZ leh{kk vFkok foospu Hkh ugha fd;k x;k gSA bu ifjfLFkfr;ksa esa ge v/khuLFk U;k;ky; ds fu.kZ; dks fujLruh; ekurs gq;s fujLr djrs gSa ,oa vihy vihykUV Lohdkj djrs gSaA"

4. In the meantime an application was filed

under Order 9 Rule 13 CPC by some of the

defendants including Rajeram to set-aside the

ex-parte judgment and preliminary decree dated

05.09.1988. In view of judgment of the First

Appellate Authority dated 07.01.1989 setting

aside the ex-parte judgment and decree dated

05.09.1988, the application filed under Order 9

Rule 13 CPC was not pressed as having become

infructuous.

5. Being aggrieved by the judgment dated

07.01.1989 passed by the First Appellate

Authority, the respondent Jagmal and others

preferred a second appeal in the Court of

learned Board of Revenue, Rajasthan, Ajmer (for

short 'the Second Appellate Authority'), which

was allowed vide judgment dated 12.01.1993, the

operative portion of which is reproduced as

under:-

"bl izd a kj la02017 dh tekcanh esa tks izo`f'B;ka Fkh mlesa ukekUrjdj.k la064 ds ek/;e ls vf/kfu;e dh /kkjk 19 ds varxZr [kkrsnkjh vf/kdkj vdsys panzk dks fn;s tkus dh tks dk;Zokgh dh xbZ Fkh og voS/k gSA ,oa ftlds QyLo:i vkxs dh tekcafn;ksa esa

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lfEefyr [kkrs dh Hkwfe dks vdsys panzk vFkok mlds okfjlksa ds uke [kkrsnkjh dh tkus dh tks Hkh dk;Zokfg;ka gqbZ gSa os lc Hkh voS/k gSA fo}ku jktLo vihy izkf/kdkjh us rF;ksa dks lgh ifjis{; esa ugha ns[krs gq, ukekUrjdj.k la064 dh dk;Zokgh dks oS/k ekuus esa dkuwuh Hkwy dh gSA vr% muds }kjk fn;s x;s fu.kZ; dks vikLr djrs gq, ge bl vihy dks Lohdkj djrs gSAa "

6. Being aggrieved by the judgment dated

12.01.1993 passed by the Second Appellate

Authority, Rawata and Pratap preferred a writ

petition bearing S.B. Civil Writ Petition

No.2926/1993 before High Court. The High Court

vide interim order dated 12.08.1993 ordered for

maintaining status quo.

7. SBCW P. No. 2926/1993 filed by Rawata &

Anr. was dismissed vide reportable judgment

dated 10.10.2007.

8. Since the judgment of the First

Appellate Authority setting aside the ex-parte

judgment and preliminary decree was quashed and

set aside by the Second Appellate Authority vide

its judgment dated 12.01.1993, the proceedings

before the trial court were revived to be

proceeded ahead of the preliminary decree i.e.

for partition and final decree but because of

the interim order dated 12.08.1993 passed by the

High Court in SBCW P.No.2926/1993, the trial

court vide its order dated 25.08.1993 adjourned

the case awaiting for further orders of High

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Court and thereafter the matter was adjourned on

each and every date for about 09 years awaiting

the orders of High Court.

9. On 04.04.2002 the trial Court dismissed

the suit due to non-appearance of the counsel

for the plaintiffs Jagmal & Ors, or the

plaintiffs themselves in the presence of counsel

appearing for the defendants.

10. Aggrieved by the order of dismissal of

the suit for non-prosecution due to non-

appearance of the counsel for plaintiffs, the

respondents/ plaintiffs preferred a restoration

application for restoration of the suit

proceedings before the Court of learned Sub

Divisional Officer, Chirawa. However, no

application for condonation of delay in filing

the restoration application was filed. The

petitioners/ defendants submitted the reply to

the restoration application. The restoration

application filed by the respondents/ plaintiffs

was allowed by the Court of learned Sub

Divisional Officer, Chirawa vide its order dated

23.03.2012.

11. The petitioners/ defendants aggrieved by

the order dated 23.03.2012 passed by the Court

of learned Sub Divisional Officer, Chirawa,

preferred a revision petition No.TA/2657/2012/

Jhunjhunu before the learned Board of Revenue,

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Rajasthan, Ajmer, which was dismissed vide order

dated 26.05.2017.

12. Now the petitioners aggrieved by the

order dated 26.05.2017 passed by the learned

Board of Revenue, Rajasthan, Ajmer, have

preferred the instant writ petition.

13. Counsel appearing for the petitioners

submitted that the learned Sub Divisional

Officer, Chirawa, allowed the application for

restoration of the suit proceedings vide order

dated 23.03.2012 in a most arbitrary manner and

without considering the settled principles of

law. Counsel further submitted that the

restoration application was preferred after a

delay of more than five years and by allowing

the restoration application the learned SDO has

failed to appreciate the material aspect in

regard to the provisions of Section 3 of the

Limitation Act, 1963 which provides limitation

for filing the suit, appeal or application and

therefore, the restoration application filed by

the respondents/ plaintiffs beyond the

limitation period was liable to be dismissed.

Counsel referred Article 122 of the Act of 1963

which provides 30 days limitation period for

filing an application for restoration. Counsel

further submitted that the applicant was

required to show sufficient cause for delay in

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preferring the application for restoration in

the restoration application but in the

application he did not provide any sufficient

reason for not appearing before the trial Court

on the due date. In support of his submissions,

counsel has placed reliance upon the following

judgments:-

1. Ragho Singh Vs. Mohan Singh & Ors., reported in JT 2000(1) SC 571;

2. Sneh Gupta Vs. Devi Sarup & Ors., reported in (2009) 6 SCC 194;

3. Samusunisha Begaum Vs. Vishnukumar Ambelal Patel & Ors., reported in 2012 GLH(2) 725;

4. Basawaraj & Anr. Vs. Special Land Acquisition Officer & one connected matter; reported in AIR 2014 SC 746; and

5. Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr., reported in (2011) 9 SCC 788.

14. Counsel appearing for the respondents

submitted that the dismissal of the suit due to

non-appearance of the counsel for the plaintiffs

vide order dated 04.04.2002 was per se illegal

and arbitrary because against the impugned

judgment and preliminary decree dated 05.09.1988

after the order of the Second Appellate

Authority dated 26.05.2017 in favour of the

respondents, the petitioner preferred the

aforementioned writ petition and an interim

order dated 31.12.1993 was passed by the High

Court for maintaining the status quo and in such

circumstances the trial Court passed the order

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for dismissal of the suit for non-prosecution.

Counsel also submitted that in view of the

interim order passed by the High Court in the

aforementioned writ petition for maintaining the

status quo, the trial Court proceeded ahead and

passed the order of dismissal of the suit

because of non-appearance of the counsel for the

plaintiffs/respondents. Counsel also submitted

that the sufficient cause for delay in filing

the appeal has already been mentioned in the

restoration application and in many of the cases

the Hon'ble Courts have held that because of

technicalities a person should not made to

suffer his rights. In support of his

submissions, counsel has placed reliance upon

the following judgments:-

1. Beepathumma Vs. Abdul Kadar Mooppen & Ors., reported in AIR 1937 TRAV.- CO. 197 (V 44 C 66 July);

2. K. Rudrappa Vs. Shivappa, reported in (2004) 12 SCC 253;

3. Venu Vs. Ponnusamy Reddiar (Dead) Thr. Lrs. & Anr., reported in 2018(15) SCC 254;

4. United Bank of India Vs. The Bhulanbaararee Coal Co. Ltd. & Ors., reported in 1992(2) ICC 417;

5. Suresh Kumar Vs. Kurban Hussain Taiyab Ali, reported in 1996 M.P.L.J. 330; and

6. Bhagmal & Ors. Vs. Kunawar Lal & Ors., reported in (2010) 12 SCC 159.

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15. Considered the submissions advanced by

learned counsels appearing for the respective

parties.

16. In view of the arguments and pleadings,

there are three issues to be considered and

decided, which are as under:-

"A. Whether the dismissal of the suit for non-appearance of the counsel for the plaintiffs after passing of the judgment and preliminary decree which was pending for scrutiny before High Court is justified in the given facts and circumstances of the case ?

B. Whether the restoration application in the given facts and circumstances of the case was liable to be dismissed on the ground of delay when no application for condonation of delay in filing an application was preferred ?

C. Whether after passing of the preliminary decree which has been finally affirmed upto High Court can be rendered inconsequential by dismissal of the suit for non-prosecution ?

17. As regards the issue No.1 is concerned,

it is to be noted that after there being an

order for ex-parte proceedings against the

petitioners/ defendants and recording of the

plaintiffs evidence, the trial Court passed the

judgment and preliminary decree on 30.08.1988

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which was challenged by the petitioner/

defendants by filing an appeal before the First

Appellate Authority which was allowed vide order

dated 07.01.1989. Against the order of the First

Appellate Authority dated 07.01.1989, the

plaintiffs/ respondents filed an appeal before

the Second Appellate Authority which came to be

allowed vide order dated 12.01.1993 setting

aside the order of the First Appellate Authority

affirming the judgment and preliminary decree

dated 05.09.1988 passed by the trial Court.

Against the order of the Second Appellate

Authority the petitioner/ defendants preferred

writ petition before the High Court and the High

Court passed an interim order dated 31.12.1993

to maintain status quo and finally the writ

petition was dismissed vide order dated

10.10.2007 and affirmed the order passed by the

Second Appellate Authority upholding the

judgment and preliminary decree dated

05.09.1988.

18. After passing of the judgment and

preliminary decree dated 05.09.1988 the suit

proceedings were pending for final decree but

because of the interim order dated 31.12.1993

passed by the High Court, the trial Court vide

order dated 25.08.1993 making a mention of the

interim order of the High Court dated 12.08.1993

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adjourned the suit proceedings to await the

further orders of the High Court. Thereafter, on

04.10.1993, 16.11.1993, 13.1.1994, 11.3.1994,

28.4.1994, 7.6.1994, 14.7.1994, 30.09.1994,

4.10.1994, 21.11.1994, 31.12.1994, 1.3.1995,

15.4.1995, 31.5.1995, 28.7.1995, 19.9.1995,

31.10.1995, 29.12.1995, 7.3.1996, 23.5.1996,

18.7.1996, 2.9.1996, 28.10.1996, 30.12.1996,

28.2.1997, 28.4.1997, 23.6.1997, 1.8.1997,

2.9.1997, 18.11.1997, 19.1.1998, 30.03.1998,

13.5.1998, 19.9.1998, 3.11.1998, 15.12.1998,

17.2.1999, 24.3.1999, 25.5.1999, 31.7.1999,

27.9.1999, 6.11.1999, 21.12.1999, 13.3.2000,

10.5.2000, 31.7.2000, 12.9.2000, 20.11.2000,

22.1.2001, 24.3.2001, 29.5.2001, 31.7.2001,

27.11.2001, 5.2.2002 and 14.3.2002 the suit

proceedings were adjourned awaiting further

orders of High Court. On the above-mentioned

dates the defendants and plaintiffs were being

regularly represented either by their counsels

or themselves. However, on 04.04.2002, the suit

was dismissed due to non-appearance of the

counsel for the plaintiff /respondent. It has

also been brought to the notice of the Court

that after 14.03.2002 new Presiding Officer

joined and thereafter on the very next date i.e.

04.04.2002, he dismissed the suit for non-

prosecution, though the suit proceedings were

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being regularly adjourned for the last nine (09)

years awaiting the orders from High Court.

19. The dismissal of the suit for non-

prosecution has annulled the adjudication made

by the trial Court, the Second Appellate

Authority as well as High Court by a detailed

judgment in the writ petition filed by the

petitioner/defendants. In the above facts and

circumstances this Court is of the view that

merely non-appearance of the plaintiff or his

counsel on one occasion should not be allowed to

scrap the complete exercise made by the trial

Court, the Second Appellate Authority as well as

High Court for adjudication of the dispute and

rights of the parties on its merits.

20. As regards the issue No.2 is concerned,

counsel appearing for the petitioner has

referred the provisions of Section 3 of the

Limitation Act, 1963, which reads thus:-

"3. Bar of limitation.-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purposes of this Act,--

(a) a suit is instituted,--

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(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted--

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the counter claim is made in court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court."

Counsel also submitted that as per

Article 122 of the Act of 1963, the limitation

period for filing the restoration application is

30 days and in case the application is filed

beyond the limitation period, the applicant has

to show sufficient cause for non-appearance of

delay in filing the application to be

accompanied by a separate application for

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condonation of delay. In the judgment referred

by him in the case of Ragho Singh (supra), it

has been observed by the Hon'ble Supreme Court

in para 3 as under:-

"3. Respondent 4 thereafter filed a revision before the Board of Revenue but the revision was dismissed on 29-12- 1979. A writ petition filed thereafter by Respondent 4 was allowed by the Patna High Court on 10-3-1995 and it was held that the appeal which was filed beyond time by 10 days ought to have been dismissed on the ground of limitation as no application was filed for condonation of delay as contemplated by Section 5 of the Limitation Act. The LPA filed thereafter was also dismissed on 24-2- 1997."

In Sneh Gupta (supra), it has been

observed by the Hon'ble Supreme Court in para 48

as under:-

"48. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay.

She filed two more applications for recall of the order dated 6.11.2004 in other enacted appeals. Those

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applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66]; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52]."

In Basawaraj & Anr. (supra), it has

been observed by the Hon'ble Supreme Court in

para 12 as under:-

"12. It is a settled legal proposition that 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. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it 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."

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21. In the case of Bhagmal & Ors. (supra)

referred by the counsel for the respondents, the

Hon'ble Supreme Court observed in para 12 as

under:-

"12. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellants/defendants had clearly pleaded that they did not earlier come to the Court on account of the fact that they did not know about the order passed by the Court proceeding ex-parte and also the ex-

parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellants/defendants for making the Order IX Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order IX Rule 13 application was, in our opinion, rightly considered by the appellate Court on merits and the appellate Court was absolutely right in coming to the conclusion that appellants/defendants were fully justified in filing the application under Order IX Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the

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decree and the orders starting the ex- parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hyper-technical view that no separate application was filed under Section 5."

In Suresh Kumar (supra), the Madhya

and 10 as under:-

"4. Section 5 of Limitation Act provides that an appeal or an application may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Section 5 in fact has been incorporated to save those innocent litigants who either under misapprehension or miscalculation, under bona fide belief or because of the inevitable circumstances could not bring the proceedings before the Court within limitation. It is the power which is given to the Court to condone delay and extend the limitation. It is for the Court to satisfy itself that the sufficient cause exists or not to condone the delay. If the Court on the facts presented before it comes to the conclusion that the delay deserves to be condoned then the Court is duty bound to save the party from unnecessary

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sufferance's and would permit the appellant to go into the arena of their legal rights of the matter after removing the hurdle of limitation.

10. The appeal is allowed. The matter is remanded back to the Lower Court for registration of the matter at its original number and to grant an opportunity to the appellant to file an application under Section 5 of Limitation Act. The parties shall appear before the trial Court on 22-1-1996. The Registry is directed to remit the records immediately along with a copy of this order so as to reach that Court before the date fixed for appearance of parties."

In United Bank of India (supra), the

Calcutta High Court in para Nos. 20,21, 22 and

23 has observed as under:-

"(20.) Let us think the subject matter in issue an other way round. Apparently decree being nullity cannot be executed Such point, even can be taken up in the execution text as the petitioner has not taken the point in execution but as the petitioner has not taken the point in execution but in am application under order 9 rule 13 of the code of civil procedures court cannot prima force reject the application Therefore court has to curt upon the merit of the application. Court has inherent power no two situations either in a case of ends of justice or to prevent the abuse of

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process of court of law, all though I fell both the principal apply herein, if not, prevention of abuse of process of court of law is apparent for its application (21.) A cause which is an abuse of process of court of law and a pure question of nullity cannot be allowed to be continued and at any stage such point can be agitated.

(22.) There for in the given situation end of justice and abuse of process of court of law supplementary to each other to crane to a conclusion.

(23.) So far the question of preference between law of limitation and nullity are concerned. In reality, nullity succeeds. Nullity is more fundamental than question of limitation."

In K. Rudrappa (supra), the Hon'ble

Supreme Court in para Nos. 10 and 11 has

observed as under:-

"10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed

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him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hyper- technical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law.

11. Very recently, almost an identical case came up for consideration before us. In Ganeshprasad Badrinarayan Lahoti (D) by Lrs. v. Sanjeevprasad Jamnaprasad Chaurasiya & Anr., Civil Appeal No. 5255 of 2004, decided on August 16, 2004, the appellants heirs and legal representatives of deceased Ganeshprasad were not aware of an appeal filed by the

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deceased in the District Court, Jalgoan against the decree passed by the Trial Court. When the appeal came up for hearing, the advocate engaged by the deceased wrote a letter to Ganeshprasad which was received by the appellants and immediately, they made an application for bringing them on record as heirs and legal representatives of the deceased. The application was rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay. The appellants, therefore, filed separate applications which were also rejected and the order was confirmed by the High Court. We had held that the applications ought to have been allowed by the courts below. We, therefore, allowed the appeal, set aside the orders of the District Court as well as of the High Court and allowed the applications. In our opinion, the present case is directly covered by the ratio in the said decision and the orders impugned in the present appeal also deserve to be set aside."

22. On reading of the judgments referred

above by the counsel appearing for both the

parties and taking into consideration the

peculiar facts and the circumstances of the case

more particularly the fact that the judgment and

the preliminary decree passed by the trial Court

has been affirmed upto High Court, this Court is

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of the view that merely on technicalities as per

the requirement of law for filing an application

for condonation of delay one should not be made

to suffer the rights adjudicated upto the level

of High Court on the ground of delay or non-

filing of the application for condonation of

delay when the applicant has sufficiently

explained the reasons in the application for

restoration of the suit. It is obligatory upon

this Court in exercise of its powers under

Articles 226 and 227 of the Constitution of

India to see that substantial justice has been

done to a litigant. Therefore, this Court is of

the view that the order for allowing the

restoration application for restoration of the

suit warrants no interference.

23. In regard to the third issue, counsel

appearing for the petitioner has referred the

judgment delivered by the Hon'ble Supreme Court

in Ganduri Koteshwaramma & Anr. (supra), wherein

and 15 has observed as under:-

"13. The legal position is settled that partition of a Joint Hindu family can be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before December

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20, 2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by the respondent no.1 is the determination of shares vide preliminary decree dated March 19, 1999 which came to be amended on September 27, 2003 and the receipt of the report of the Commissioner.

14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.

15. We are fortified in our view by a 3- Judge Bench decision of this Court in the case of Phoolchand and Anr. Vs. Gopal Lal (AIR 1967 SC 1470) wherein this Court stated as follows:

"We are of opinion that there is nothing in the Code of Civil

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Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented.... So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; .... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility ... for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties... a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving

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parties in that behalf and that dispute is decided the decision amounts to a decree..."

24. On the other hand counsel appearing for

the respondents referred the judgment delivered

in case of Venu (Supra), para 4 of which is

reproduced as under:-

"4. In our opinion a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree. Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree."

In Beepathumma (supra) it has been held

in para Nos.4,8,12 and 13 as under:-

"4. It is not disputed by the respondents that the court went wrong in dismissing the suit for default after a preliminary decree for partition was passed in the case. In Lachmi Narain v.

Balmakund, AIR 1924 PC 198 (A) the Privy Council held that "after a decree has once been made in a suit, the suit

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cannot be dismissed unless the decree is reversed on appeal", the reason being that "the parties have on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside". In that case a preliminary decree for partition was passed in appeal by the High Court and the suit was remitted to the Subordinate Judge for passing a final decree. On the day to which the case was posted neither the plaintiff nor his counsel was present and the court dismissed the suit for default. In revision filed from this order the High Court set it aside. From the order of the High Court an appeal was filed before, the Privy Council. The Privy Council confirmed the order of the High Court, and held that the order of the Subordinate Judge dismissing the suit was one passed without jurisdiction.

8. It is clear from the above rulings that the court acted illegally in dismissing the suit for default in this case. But it is contended for the respondents that, although the order dismissing the suit is illegal, it is not a nullity and that so long as it was not sought to be vacated by any of the parties in the manner provided by law by steps taken within time, it will stand and the court cannot set it aside in the exercise of its inherent jurisdiction.

The question, therefore, for consideration is whether the order dismissing the suit was one passed

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without jurisdiction and therefore a nullity or whether it was merely a wrong order. The further question is whether, even if the order is not a nullity, the court can set it aside in the exercise of its inherent jurisdiction.

12. In AIR 1936 Lah 875 (J), also the facts are more or less similar. Jai Lal, J., held in that case that although the order dismissing the suit was illegal it could not be ignored and that it was necessary to have it set aside in due course of law, either by review or by an application to set aside the dismissal or by an appeal or revision. The learned Judge proceeded on the basis that the order dismissing the suit was only an illegal order and not one passed without jurisdiction. But, as stated already, that was not the view taken by the Privy Council in AIR 1924 PC 198 (A). The question whether the Court can in the exercise of its inherent jurisdiction set aside the order of dismissal and restore the suit to file was not considered either in 1928 Mad 963 (I) or in AIR 1936 Lah 875 (J).

13. For the reasons stated already, we hold that the order dismissing the suit in this case was one passed without jurisdiction and is, therefore, a nullity. We are also of opinion that even if the order is not a nullity the Court is competent to set it aside in the exercise of its inherent jurisdiction. We, therefore, reverse the order of the Court below and direct that Court to take the case back into its

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file and pass a final decree. The revision petition is allowed with costs."

25. In the present case the judgment and

preliminary decree passed by the trial Court has

been upheld upto High Court by a detailed

judgment and during the effect of an interim

order of status quo, the trial Court dismissed

the suit for non-prosecution on a day after

joining a new Presiding Officer, though for the

last approx. nine (09) years, it was being

adjourned for awaiting further orders of High

Court. This Court is of the view that the order