Laxmi Narayan And Others vs Pana Bai And Others ...
2023 Latest Caselaw 4793 Raj/2

[2023:RJ-JP:22616]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 172/2012

1.Luxmi Narayan S/o Shyobux, R/o Chhabra, District Baran,
Rajasthan (Deceased-issuless)
2.Mool Chand S/o           shyobux, R/o Chhabra, District Baran,
Rajasthan, Deceased through legal representatives:-
2/1.Kaushlya Bai, aged 65 years, wife of Mool Chand
2/2.Ganesh urf Golu aged 22 years, wife of Mool Chand
2/3.Gyatri Bai, age 38 years, Daughter of Mool Chand
2/4.Mohani Bai, aged 35 years, daughter fo Mool Chand
2/5.Sarada Bai, aged 30 years, daughter of Mool Chand
2/6.Luxmi Bai, aged 28 years, daughter of Mool Chand
2/7.Sonu aged 19 years, daughter of Mool Chand
2/8.Priyanka Minor daughter of Mool Chand (deceased)
2/9.Ranu age 20 years, daughter of Mool Chand
All are R/o Chhabra, Baran, Rajasthan.
3.Kushlya Bai, age 65 years, wife of Mool Chand, R/o Chhabra,
District Baran, Rajasthan.
                                                    ----Appellants-Defendants
                                     Versus
1. Pana Bai wife of Madho Lal, daughter of Shyobux, R/o Ward
No.1, Lota Bhiru, Chhabra, District Baran, Rajasthan, deceased
through legal representatives
1/1. Kailash Devi wife of Ramdeo Rathore, aged 50 years, R/o
Hal Tonk, District Tonk, Daughter of Pana Bai Rathore, R/o
Chhabra
1/2. Rambharosi Bai wife of late Nathu Lal, R/o Hal Tonk, District
Tonk, Daughter of Pana Bai Rathore, R/o Chhabra District Baran,
Rajasthan
                                                     ----Plaintiffs-Respondents

For Appellant(s)           :     Mr. S.L. Songara
For Respondent(s)          :



       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                           Judgment / Order

13/09/2023




 [2023:RJ-JP:22616]                   (2 of 6)                    [CSA-172/2012]

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

by 1044 days, is accompanied with an application under Section 5

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

condonation of delay.

Reiterating the averments made in the application, learned

counsel for the applicants submits that they were not informed by

their counsel regarding decision of the civil first appeal and they

came to know of it when the Nazir came to serve the warrant of

execution application filed by the respondents in the month of

February, 2012 and thereafter, this civil second appeal was

preferred without any further delay. He, therefore, prays for

condonation of delay.

Heard. Considered.

Absence of information by the counsel can hardly be

reckoned as satisfactory explanation for condonation of inordinate

delay of 1044 days. No reason has been furnished in the

application as to why the counsel was not contacted by the

appellants for a period of about three years. The equity comes to

the aid of a vigilant litigant and inordinate delay cannot be

condoned in favour of a litigant who is negligent and indolent

about status of his case.

A coordinate Bench of this Court has, in case of Jetaram &

Ors. Versus Tari Devi:MANU/RH/0221/2021, dealing with an

identical situation, held as under:-

"17. The sum and substance of the application under Section 5 of the Limitation Act and the additional affidavit is that the appellants were not informed by the counsel about the decision dated

[2023:RJ-JP:22616] (3 of 6) [CSA-172/2012]

22/2/2014. The said plea raised apparently is specious, inasmuch as the counsel, who was representing the appellants died on 4/4/2016 i.e. after more than two years. It is not indicated by the appellants as to between 22/2/2014 and 4/4/2016 and thereafter till January, 2020 whether they made any effort/inquiry to find out the status of the appeal. It cannot be comprehended that a party once entrusting a case to the counsel would not care to even try to meet the counsel to find out the status of the case for over six years and as such, apparently, said submission regarding counsel not informing is without any basis.

18. A perusal of the original application filed under Section 5 of the Limitation Act, contents whereof have been quoted hereinbefore, indicates that a stock plea was raised that the counsel did not inform about the outcome and as soon as the appellants became aware of passing of the judgment by the appellate court, they rushed to the office of counsel, obtained copy of the judgment and rushed for filing the appeal. In fact, it is not even indicated in the application filed initially that the counsel had died in the year 2016 and it is only when the Court found that the application was laconic, time was sought and additional affidavit was filed, wherein, for the first time, it was indicated that the counsel has died. In fact, the submission made in the initial application is that the copy of the judgment was obtained from the office of the counsel, which submission now appears to be per se incorrect.

19. The standard practice in seeking condonation of delay by putting the blame on the counsel allegedly not informing about the outcome of the litigation, cannot be countenanced in each and every case

[2023:RJ-JP:22616] (4 of 6) [CSA-172/2012]

where the party, even if the allegation is true, chose not to approach the counsel for six long years and as such, besides the fact that the plea raised is apparently incorrect, in view of the averments contained in the application filed initially and the additional affidavit, the same cannot be accepted."

Since, this Court is not satisfied that the applicants were

prevented by a sufficient cause for preferring the civil second

appeal within limitation, the application filed under Section 5 of

the Act of 1963 does not merit acceptance.

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

the appellants has been heard on merits of the case.

This civil second appeal has been preferred against the

judgment and decree dated 17.02.2009 passed by the learned

Additional District Judge, Chhabra, District Baran, Rajasthan

(hereinafter referred to as "the learned appellate Court") in Civil

Appeal No.22/2007 whereby, while dismissing the appeal

preferred by the appellants/defendants (for short "the

defendants"), the judgment dated 12.09.2007 passed by the

learned Civil Judge (Senior Division), Chhabra, District Baran,

Rajasthan (for brevity "the learned trial Court") decreeing the Civil

Suit No.20/1994 filed by Smt. Pana Bai, the predecessor-in-

interest of the respondents No.1/1 & 1/2 (for short "the plaintiff")

for mandatory and permanent injunction, has been affirmed.

The relevant facts in brief are that the plaintiff filed a suit

against the defendants for mandatory and permanent injunction

stating therein that the parties are brothers and sisters and after

death of her husband when she was aged about 20 years, she has

been residing peacefully in her parental house for last about 40

[2023:RJ-JP:22616] (5 of 6) [CSA-172/2012]

years. Alleging that the defendants wanted to dispossess her

forcibly, the decree as aforesaid was prayed for.

The defendants in their joint written statement, admitting

that the plaintiff has been residing in the subject property,

submitted that she is owner of the property left behind by her late

husband and the suit was not maintainable.

On the basis of pleadings of the parties, learned trial Court

framed six issues including relief. After recording evidence of the

respective parties, the learned trial Court decreed the suit vide

judgment dated 12.09.2007. The civil first appeal preferred

thereagainst by the defendants has been dismissed by the learned

appellate Court vide judgment and decree dated 17.02.2009.

Assailing the impugned judgment and decree, the learned

counsel for the defendants would submit that in absence of a

prayer for declaration, the suit simplicitor for injunction was not

maintainable. He, therefore, prays that the civil second appeal be

allowed, the judgment and decree dated 17.02.2009 be quashed

and set aside and the suit be dismissed.

Heard. Considered.

The learned trial Court has, on the basis of evidence

available on record including the admission by Shri Mahesh

Rathore (DW-2) that the plaintiff has been residing in the subject

property alongwith her brothers, held that it was established that

the plaintiff has been residing in the subject property after death

of her husband since long. It was also held that being a widowed

daughter, she has a right to reside in the undivided joint Hindu

family property. These findings have been affirmed by the learned

appellate Court after re-appreciating the evidence on record. In

[2023:RJ-JP:22616] (6 of 6) [CSA-172/2012]

view of the aforesaid findings, in the considered opinion of this

Court, the learned Courts did not err in decreeing the suit. Since,

the plaintiff has been found to be in long, peaceful, settled and

lawful possession of the subject property in her right, this Court is

not convinced that without seeking a decree of declaration, the

suit filed by her for injunction was not maintainable.

In view thereof, this Court does not find this civil second

appeal to be involving any substantial question of law.

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

Manish/67

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