Longshree D/O Prabhatiram vs Kalyan Sharma S/O Daujirama ...
2023 Latest Caselaw 6337 Raj/2

[2023:RJ-JP:31957]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 614/2018

1.       Longshree D/o Prabhatiram,
2.       Ramo D/o Prabhatiram,
3.       Ramwati D/o Prabhati Ram,
4.       Dhakeli D/o Prabhati Ram,
5.       Sitaram S/o Prabhati Ram,
6.       Rati D/o Prabhati Ram,
7.       Radheshyam S/o Prabhati Ram,
8.       Savitri D/o Prabhati Ram,
         R/o Village Borae, Tehsil Kumher, District Bharatpur (Raj).
                                                        ----Appellants/Plaintiffs
                                     Versus
Kalyan Sharma S/o Daujirama, R/o Borae, Tehsil Kumher, Distirct
Bharatpur (Raj.) At Present Near Manav Bharti School, Neemda
Gate, Bharatpur District Bharatpur.
                                                    ----Respondent/Defendant

For Appellant(s) : Mr. J.K. Moolchandani For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

31/10/2023

This civil second appeal, which is reported to be time barred

by 219 days, is accompanied with an application under Section 5

of the Limitation Act, 1963 (for brevity, "the Act of 1963").

Reiterating the averments made in the application, learned

counsel for the appellants submits that the delay in filing the

second appeal occurred on account of non-communication of

decision of the civil first appeal by their learned counsel. He,

therefore, prays that the delay in filing the appeal be condoned.

[2023:RJ-JP:31957] (2 of 3) [CSA-614/2018]

Heard. Considered.

The averments in the application under Section 5 are bald

and vague. No reason has been assigned as to why the appellants

did not contact their counsel in time inquiring about status of the

first appeal preferred by them. Mere non-communication of the

decision of the pending litigation by the counsel is no ground to

condone the inordinate delay especially, when no reason has been

assigned as to why the litigant did not contact his counsel well in

time. The law comes to the aid of a vigilant and deligent litigant

and not to an indolent person.

In view thereof, the inordinate delay in preferring the

second appeal does not deserve to be condoned.

However, in the interest of justice, the learned counsel has

been heard on merits of the case.

This civil second appeal has been preferred against the

concurrent findings of facts recorded by the learned Additional

District Judge No.2, Bharatpur and the learned Civil Judge (Senior

Division), Kumher (Bharatpur) whereby, the suit filed by the

appellants for permanent injunction, has been dismissed.

The learned trial Court has, after appreciating the oral as

well as documentary evidence on record, held that the plaintiffs

could not establish their lawful possession over the subject

property. The learned Appellate court has affirmed the findings

recorded by the learned trial Court re-appreciating the evidence

on record. It was held that while, the plaintiffs could not establish

their possession over the subject property, the

respondent/defendant has led cogent evidence to show and

establish his possession over it.

[2023:RJ-JP:31957] (3 of 3) [CSA-614/2018]

Since, the appellants have not been found to be in lawful

possession of the subject property, in the considered opinion of

this Court, the learned Courts did not err in dismissing the suit

filed by them for permanent injunction.

Since, the concurrent findings of facts recorded by the

learned Courts have not been shown to be suffering from any

illegality, infirmity, perversity or jurisdictional error by the learned

counsel for the appellants, no interference of this Court under

Section 100 CPC is warranted.

Resultantly, the application under Section 5 of the Act of

1963 as also the civil second appeal are dismissed being devoid of

merit.

(MAHENDAR KUMAR GOYAL),J

Sudha/100

Powered by TCPDF (www.tcpdf.org)