Rajasthan High Court - Jodhpur

Lrs Of Sumer Chand Patwa vs Lrs Of Sajjan Raj ... on 17 October, 2023

Bench: Rekha Borana

[2023:RJ-JD:35484]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 23/2023

1. Lrs Of Sumer Chand Patwa, S/o Late Shri Ummed Chand Patwa, Resident Of Inside Chandi Hall, Jodhpur Through His Lrs-

1/1. Smt. Sohan Kanwar W/o Late Shri Sumer Chand Patwa, Aged About 78 Years, Resident Of Inside Chandi Hall, Jodhpur.

1/2. Shashi Bhushan Patwa S/o Late Shri Sumer Chand Patwa, Aged About 40 Years, Resident Of Inside Chandi Hall, Jodhpur.

1/3. Smt. Saroj D/o Late Shri Sumer Chand Patwa, Aged About 57 Years, W/o Shri Sohan Raj, Resident Of Near Somnath Temple, Pali.

1/4. Smt. Kamlesh D/o Late Shri Sumer Chand Patwa, Aged About 55 Years, W/o Shri Dhanpat Mal Ruthiya, Resident Of Saraga Bazar, Jodhpur.

1/5. Smt. Amita D/o Late Shri Sumer Chand Patwa, Aged About 51 Years, W/o Shri Rajendra Bafna, Resident Of Manak Chowk, Jodhpur.

----Appellants

Versus

1. Lrs Of Sajjan Raj, S/o Shri Dhan Raj Goliya, Resident Of Near Chandi Hall, Jodhpur Through His Lrs- 1/1. Smt. Vallabh Jain (Goliya) W/o Late Shri Sajjan Raj, Resident Of Goliyon Ki Pole, Kapda Bazar, Jodhpur. 1/2. Lalit Jain S/o Late Shri Sajjan Raj, Resident Of Goliyon Ki Pole, Kapda Bazar, Jodhpur.

2. Laxmi Chand S/o Late Shri Ummed Chand Patwa, Resident Of 4 F 3 Kudi Bhagtasani Housing Board, Jodhpur.

                                                                 ----Respondents


For Appellant(s)           :    Mr. Narendra Thanvi
For Respondent(s)          :    Mr. Bharat Boob


              HON'BLE MS. JUSTICE REKHA BORANA
                           Judgment

17/10/2023

1. The present appeal is reported to be barred by 1244 days.

An application under Section 5 of the Limitation Act has been filed

on behalf of appellant/applicant No.2 with the submission that the

[2023:RJ-JD:35484] (2 of 7) [CSA-23/2023]

counsel representing the appellants did not inform them about the

impugned judgment and decree dated 30.05.2019 and

unfortunately he passed away subsequently. Recently when

applicant No.2 Shashi Bhushan Patwa visited the office of the

counsel, a bag of documents was handed over to him and in the

bag, copy of the impugned judgment and decree dated

30.05.2019 was found by him. It has been submitted that prior to

the said date, respondents were not even aware of the judgment

and decree dated 30.05.2019. Further, the ground of applicant

No.2 Shashi Bhushan Patwa being suffering from serious ailment

has also been submitted. With the said submissions, it has been

prayed that the delay caused in filing the present appeal be

condoned.

2. A reply to the said application has been filed on behalf of the

respondents with the specific pleading that the averment as made

by the appellants being non aware of the impugned judgment and

decree dated 30.05.2019 is totally false as, after the passing of

the said judgment and decree, the applicants and to be specific,

applicant No.2, was pursuing the proceedings before the various

courts between the same parties.

It has been submitted that soon after the impugned

judgment and decree been passed, firstly, an application under

Section 47, CPC was filed on 20.07.2019 by appellant No.2 Shashi

Bhushan Patwa and further, even objections under Order 21 Rules

97, 100 & 101, CPC were filed on 11.09.2019.

3. A list of events has been filed by learned counsel for the

respondents and along with the same, the documents - the

application under Section 47, CPC as filed by appellant No.2

[2023:RJ-JD:35484] (3 of 7) [CSA-23/2023]

Shashi Bhushan Patwa and the objections as filed by him under

Order 21 Rules 97, 100 & 101, CPC have been placed on record.

4. Learned counsel for the appellants submitted that the

objections as filed by appellant No.2 were in the execution

proceedings initiated by the decree holder in terms of the

judgment and decree passed by the learned Trial Court and the

same had nothing to do with the judgment and decree passed by

the first Appellate Court. Counsel submitted that a bare perusal of

the application under Section 47, CPC as well as the objections

under Order 21 Rules 97, 100 & 101, CPC would make it clear that

the same were only qua the judgment and decree passed by the

learned Trial Court.

Counsel further submitted that the documents annexed along

with the application pertaining to medical treatment of the

appellant No.2 are sufficient to prove that he was suffering from

serious ailments and hence, the said fact should also be taken into

consideration while considering the delay caused in filing the

present appeal.

5. Per contra, learned counsel for the respondents submitted

that a perusal of the documents as placed on record by him would

make it crystal clear that the appellants were very well aware of

the impugned judgment and decree dated 30.05.2019 as the

application under Section 47, CPC was filed on 20.07.2019 and the

objections under Order 21 Rules 97, 100 & 101, CPC were also

filed after passing of the said judgment and decree. Therefore, the

delay caused in filing the present appeal does not deserve to be

condoned.

[2023:RJ-JD:35484] (4 of 7) [CSA-23/2023]

6. At this stage, learned counsel for the appellants prayed for

time to file an additional affidavit to make further averments

regarding the delay caused in filing the present appeal.

7. The request as made by learned counsel for the appellants is

declined firstly, for the reason that the application under Section

5 of the Limitation Act was filed way back in the month of

February 2023 and the reply to the same was filed in the month of

July 2023. It is only when the arguments on the application under

Section 5 of the Limitation Act were heard by this Court yesterday

and learned counsel for the respondents was directed to submit

the documents in support of his submission and the same having

been submitted, that the said prayer has been made.

Secondly, this Court is of the clear opinion that total false

averments have been made in the application and therefore, no

indulgence can be granted in favour of a party who has knowingly,

made wrong and incorrect facts on oath before the Court.

8. Heard learned counsel for the parties on the application

under Section 5 of the Limitation Act and perused the material

available on record.

9. Admittedly, the impugned judgment and decree was passed

on 30.05.2019. On 20.07.2019, an application under Section 47

read with Section 151, CPC and Section 3 of the Limitation Act

was preferred by the present appellant No.2 Shashi Bhushan

Patwa before the learned Executing Court wherein it was

specifically averred as under:-

"rRi"pkr ml fMØh o vkns"k ds f[kykQ izkFkhZ us ,d vihy ekuuh;

U;k;ky; esa izLrqr dh x;h ftl ij Hkh U;k;ky; }kjk nhokuh ewy okn la[;k 510@1995 dUlksyksMsVsM ,ulhlh uacj 74@2015 lqesjpan iVok cuke lTtujke esa fnukad 6-9-2017 dks ikfjr fd;s x;s visf{kr fu.kZ; o fMØh dh iqf'V fd;s tkus dk vkns"k ikfjr fd;kA blds vanj mijksDr

[2023:RJ-JD:35484] (5 of 7) [CSA-23/2023]

vihy dks dalksyhMsV okn esa lqesjpan ds dk;e eqdke us i{kdkj cuus gsrq izkFkZuk i= izLrqr fd;k D;ksfd lqesjpan dh e`R;q gks pqdh Fkh rRi"pkr lqesjpan ds dk;e eqdke dks ekuuh; U;k;ky; us mlds dk;e eqdke dks fjdkMZ ij ys fy;k mUgh dk;e eqdke ds }kjk mijksDr fyf[kr vihy ekuuh; U;k;ky; gktk esa izLrqr dh x;h mlesa Hkh v/khuLFk U;k;ky; }kjk ikfjr vkns"k dh iqf'V dh x;hA"

The reply to the application was filed by the decree holder

wherein it was averred as under:-

";gk¡ ;g mYys[k djuk Hkh mfpr gksxk fd nkSjkus okn lqesjpan iVok dh e`R;q gks tkus ds dkj.k muds dk;e eqdkeku ,oa okfjlku dks muds LFkku ij izfrLFkkfir fd;k x;k ,oa mDr fu.kZ; fnukad 6@9@2017 dks gksus ij ml fu.kZ; dh ,d vihy lqesjpan iVok ds okfjlku us Jheku~ ftyk U;k;ky;] tks/kiqj egkuxj ds le{k is"k dh] tks rRi"pkr~ vij ftyk U;k;ky; la[;k&5] tks/kiqj egkuxj ds U;k;ky; esa LFkkukUrfjr dh xbZ ,oa mDr vihy nhokuh vihy fMØh la- 85@2017 ntZ jftLVj dh tkdj mDr vihy dk fu.kZ; fnukad 30@5@2019 dks fd;k x;k ,oa lqesjpan iVok ds okfjlku ds }kjk izLrqr dh xbZ mDr vihy [kkfjt dh xbZA"

On 11.09.2019, objections under Order 21 Rule 97, CPC

along with the other provisions of law were filed by the objector

Shashi Bhushan Patwa with the following averments:-

"bl fMØh ds f[kykQ lqesjpUn ds dk;e eqdke us ,d vihy vij ftyk U;k;k/kh"k la[;k 5] tks/kiqj egkuxj ds le{k izLrqr dh tks U;k;ky; esa lquokbZ gsrq j[kh xbZA ckn lquokbZ ds vij ftyk U;k;k/kh"k la[;k 5] tks/kiqj egkuxj }kjk fnukad 30&5&2019 dks vihy [kkfjt dj nh xbZ A"

10. A bare perusal of the above pleadings as made by the

applicant No.2 himself is sufficient to show that he was very well

aware of the impugned judgment and decree dated 30.05.2019.

Even if it is assumed that he was not aware of the impugned

judgment and decree dated 30.05.2019 when the application

under Section 47, CPC was filed, reply to the said application

specifically comprise of the pleading qua the judgment and decree

dated 30.05.2019. Further, the objections as filed by Shashi

Bhushan Patwa also, in unequivocal terms, talked of the fact that

[2023:RJ-JD:35484] (6 of 7) [CSA-23/2023]

the judgment and decree dated 30.05.2019 was passed by the

first Appellate Court.

11. In view of the above facts, it is clear on record that the

averment regarding the appellants being not aware of the

judgment and decree dated 30.05.2019 stated on oath by the

appellants before this Court is totally false. This Court is of the

clear opinion that such facts amount to over reaching the process

of the Court. Such practice of any litigant cannot be appreciated

by this Court and deserves to be curtailed. Dealing with the issue

of filing a false affidavit before the Court, the Hon'ble Apex Court

in Sciemed Overseas Inc Vs. BOC India Limited & Ors.;

(2016) 3 SCC 70, held as under:

"2. A global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as compared to the number of such cases prior to that. This is illustrative of the malaise that is slowly but surely creeping in. This 'trend' is certainly an unhealthy one that should be strongly discouraged, well before the filing of false affidavits gets to be treated as a routine and normal affair."

In a similar matter, the Hon'ble Apex Court in Mohd. Sahid

and Ors. Vs. Raziya Khanam (D) thr. L.Rs.

and Ors.; (2019) 11 SCC 384, while dealing with similar set of

facts held as under:

"19. The order sheet and other materials placed on record clearly show that the Appellants had full knowledge about the proceedings of the Original Suit No. 591 of 1979 and also about the disposal of the

[2023:RJ-JD:35484] (7 of 7) [CSA-23/2023]

Writ Petition(C) No. 19550 of 1985 and the Appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the Appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay. We do not find any perversity or infirmity in the impugned order warranting interference and the appeal is liable to be dismissed."

12. In view of the above observations, this Court does not find

any ground to condone the huge and inordinate delay of 1244

days caused in filing the present appeal. The application under

Section 5 of the Limitation Act is hence dismissed with a cost of

Rs.25,000/-. The cost be deposited with Litigants Welfare Fund

within a period of three weeks.