Rajasthan High Court
Thakurji Shri Madan Mohan Ji vs Smt Jadawa Devi on 7 March, 2024
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
[2024:RJ-JP:11691]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 470/2015
Thakurji Shri Madan Mohan Ji Wakey Mohja Sanrakshak
Anantwada Tehsil Baswa Minor through natural guardian Ramesh
S/o Bhagwansahaya, R/o Anantwada Tehsil Baswa District Dausa
----Appellant
Versus
1. Smt Jadawa Devi W/o
2. Satyanarayan S/o Bhagwansahya
3. Syamsunder S/o Bhagwansahya
4. Mahendra Kumar S/o Bhagwansahya
5. Kailadevi W/o Jagdish Prasad Sharma R/o Mohi Tehsil Baswa
District Dausa
R/o Abaneyri Tehsil Baswa, District Dausa
6. Rajo @ Dholi Devi W/o Girrajprasad Sharma R/o Kalakho Bada
Baras Tehsil Dausa District Daua
7. Manta Devi W/o Manikant Sharma R/o Khuri Pai Tehsil Dausa,
District Dausa
8. Tehsildar Baswa Tehsil Baswa District Dausa
----Respondent
For Appellant(s) : Mr. Mohit Gupta, Adv.
For Respondent(s) : Mr. Ashish Kumar Sharma, Adv.
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
DATE OF JUDGMENT 07/03/2024
This Civil Miscellaneous Appeal has been filed by the
appellant against the order dated 15.12.2014 passed by Additional
District Judge, Bandikui, District Dausa in Civil Misc. Application
No.16/2010, whereby the application filed by the appellant under
Order 41 Rule 19 CPC and application under Section 5 of the
Limitation Act have been dismissed.
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[2024:RJ-JP:11691] (2 of 3) [CMA-470/2015]
Learned counsel for the appellant submits that appellant had
filed an appeal against the judgment and decree dated 23.03.2005
passed by the trial court but the said appeal was dismissed in
default of appearance of appellant's advocate on 18.09.2009. The
appellant came to know about the fact of dismissal of appeal on
11.02.2010. Then, the appellant had filed the restoration
application under Order 41 Rule 19 CPC alongwith an application
under Section 5 of the Limitation Act before learned court below
but learned court below wrongly dismissed the applications filed
by the appellant vide order dated 15.12.2014. Learned counsel for
the appellant also submits that learned court below had wrongly
observed that appeal stood abated on account of non bringing the
legal heirs of the deceased Harinarayan and Bhagwansahay on
record in time. Learned counsel for the appellant also submits that
abatement was not a subject matter before learned court below,
which was to be adjudicated upon. Only learned court below had
to see the reason of the non-appearance of the appellant's
advocate on 18.09.2009, whether it was bona fide or not. So,
order of the court below be set aside and appeal be restored to its
original number.
Learned counsel for the respondents has opposed the
arguments advanced by learned counsel for the appellant and
submits that the court below rightly dismissed the applications
filed by the appellant for restoration of the appeal because
appellant failed to show the bona fide cause for non-appearance of
his Advocate before the court below on 18.09.2009 and he had
not filed the affidavit of the said Advocate. Learned counsel for
the respondents also submits that Harinarayan died in the year
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[2024:RJ-JP:11691] (3 of 3) [CMA-470/2015]
2006 and Bhagwanshaya died in the year 2009 but their legal
heirs were not brought on record. The court below rightly
dismissed the applications filed by the appellant on account of
abatement. So, appeal be dismissed.
I have considered the arguments advanced by learned
counsel for the appellant as well as learned counsel for the
respondents.
Appeal was filed by the appellant, who is perpetual minor.
Appellant clearly mentioned in its application that advocate did not
appear in the court below on 18.09.2009 and he came to know
about the fact of dismissal of the appeal on 11.02.2010. So, in my
considered opinion, cause given by the appellant was sufficient
and bona fide. The court below while adjudicating the application
under Order 41 Rule 19 CPC wrongly observed about abatement
of the appeal because this point would be decided after restoration
of the appeal. So, appeal filed by the appellant deserves to be
allowed.
Accordingly, the appeal filed by the appellant is allowed with
a cost of Rs.5,000/- to be deposited with Rajasthan State Legal
Services Authority within one month from today.
On filing the receipt thereof, the court below shall restore the
appeal at its original number and proceed further in the matter.
(NARENDRA SINGH DHADDHA),J
Jatin /44
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