Rajasthan High Court - Jodhpur
Pushpchand vs Smt. Vijay Laxmi on 13 May, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:22639]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Review Petition No. 5/2025
In
S.B. Civil First Appeal No. 176/2010
Pushpchand S/o Shri Sujanmal, Aged About 81 Years, R/o D-5
Shastri Nagar Jodhpur Through Its Power Of Attorney Holder
Dilip Choradiya S/o Fateh Chand R/o 6-A 2/2 Subhash Nagar Pal
Road Jodhpur
----Petitioner
Versus
1. Smt. Vijay Laxmi W/o Adarsh Kumar Bhansali, Aged
About 59 Years, R/o Pushp Bhawan Railway Hospital Road
Jodhpur
2. Smt Madhu Rathi W/o Shyamsunder Rathi, Aged About 52
Years, R/o Kabutaron Ka Chowk Jodhpur
3. Lrs Kalu @ Kalia, S/o Daila Ram
3/1. Basti Ram S/o Late Shri Kalu Ram @ Kalia, R/o Banerio Ki
Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
3/2. Ramlal S/o Late Shri Kalu Ram @ Kalia, R/o Banerio Ki
Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
3/3. Bhalla Ram S/o Late Shri Kalu Ram @ Kalia, R/o Banerio
Ki Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
3/4. Dhalla Ram S/o Late Shri Kalu Ram @ Kalia, R/o Banerio
Ki Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
4. Lrs Pabu Ram @ Pabuda, S/o Shri Chaila Ram
4/1. Smt. Chanda Devi W/o Late Shri Pabu @ Pabuda, R/o
Banerio Ki Dhani, Jhalamand Choraha, Basani Chouhan,
Jodhpur.
4/2. Raju Ram S/o Late Shri Pabu @ Pabudaaged, R/o Banerio
Ki Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
4/3. Shyamlal S/o Late Shri Pabu @ Pabudaaged, R/o Banerio
Ki Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
4/4. Satya Narayan S/o Late Shri Pabu @ Pabuda, R/o Banerio
Ki Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
4/5. Naina Ram S/o Late Shri Pabu @ Pabuda, R/o Banerio Ki
Dhani, Jhalamand Choraha, Basani Chouhan, Jodhpur.
(Downloaded on 13/05/2025 at 06:24:21 PM)
[2025:RJ-JD:22639] (2 of 7) [CRW-5/2025]
5. Lrs Of Prema Ram, S/o Shri Kalu Ram
5/1. Uda Ram S/o Late Shri Prema Ram, R/o Hem Nagar,
Banuo Ki Dhaniya, Jhalamand, Jodhpur.
5/2. Prahlad S/o Late Shri Prema Ram, R/o Hem Nagar, Banuo
Ki Dhaniya, Jhalamand, Jodhpur.
5/3. Pappuram S/o Late Shri Prema Ram, R/o Hem Nagar,
Banuo Ki Dhaniya, Jhalamand, Jodhpur.
5/4. Sampat S/o Late Shri Prema Ram, R/o Hem Nagar, Banuo
Ki Dhaniya, Jhalamand, Jodhpur.
6. Smt Sunita W/o Ratanchand Patwa, R/o Kishore Kunj Jain
Street Sarafa Bazar Jodhpur
7. Smt Anita Mehta W/o Mahendra Mal Jain, R/o Jain Street
Sarafa Bazar Jodhpur
8. Smt Rekha W/o Suresh Kankariya, R/o Jalate Deep Gali
Jodhpur
9. Smt Sarla W/o Prakashchand, R/o Manak Nowas Street
Near Sbbj Jalori Gate Jodhpur
10. Smt Suman Devi W/o Suresh Ranka, R/o 119 1St B Road
Sardarpura Jodhpur
11. Ratanchand S/o Kanchand Patwa, R/o Kishore Kunj Jain
Street Sarafa Bazar Jodhpur
12. Smt Manohari Devi W/o Shri J. L. Kankaria, R/o Bus
Stand Bhopalgarh District Jodhpur.
13. Smt Deepmala @ Sonu W/o Susheel Jain, R/o A-52
Shastri Nagar Jodhpur
----Respondents
For Petitioner(s) : Mr. Nishit Shah
For Respondent(s) : Mr. Sajjan Singh Rajpurohit
Mr. Prashant Tatia
Mr. Ankit Somani
Mr. Abhishek Sharma
HON'BLE MR. JUSTICE BIRENDRA KUMAR
JUDGMENT RESERVED ON : 09.05.2025
JUDGMENT PRONOUNCED ON : 13.05.2025
[2025:RJ-JD:22639] (3 of 7) [CRW-5/2025]
1. Heard the parties.
2. The sole petitioner-Pushpchand has sought for review of
judgment and decree dated 29.01.2025 passed in S.B. Civil First
Appeal No.176/2010. By the said judgment, Civil Original Suit
No.282/2004 (58/1997) was restored to its original file, after
setting aside order dated 10.02.2010, whereby the plaint of the
aforesaid suit was rejected under Order VII Rule 11 C.P.C.
3. The petitioner has in fact not sought for a review of the
judgment of this Court rather has sought for clarification based on
material on the record on an important issue which was not
pointed out at the time of final hearing of the appeal.
4. A brief background is that the petitioner had brought Civil
Suit No.71/1991 for specific performance of contract against one
Kalu Ram and Pabu Ram @ Pabuda, both full brothers (now dead).
Both the full brothers filed their separate written statement in the
suit making different averments including disclosure that Kalu
Ram had sold his share in the suit property through a common
registered sale deed dated 07.10.1992 to 63 persons. The 63
purchasers pendent lite including plaintiffs of the restored suit
were not made party in the aforesaid Civil Suit No.71/1991. After
filing of the written statement, Kalu Ram and Pabu Ram did not
prosecute the suit. Accordingly, the trial Court decreed the suit in
favour of the petitioner hereat by judgment and decree dated
18.04.1996.
5. Accordingly, an execution proceeding started, for registration
of sale deed in pursuance of the aforesaid decree, on 28.05.1997.
The Execution Court, on failure of the vendor to execute the sale
deed, got the sale deed executed in favour of the petitioner
[2025:RJ-JD:22639] (4 of 7) [CRW-5/2025]
through process of the Court. Thereafter, all the 63 lis pendens
purchasers filed applications separatelly in group under Order I
Rule 10 C.P.C. before the Execution Court for their impleadment.
The Execution Court refused their impleadment on the ground that
transfer in their flavour is hit by principle of lis pendens. Out of 63
aforesaid, only nine purchasers filed the restored suit bearing Civil
Original Suit No.282/2004 (58/1997). In this suit also, some of
the purchasers (31 in number) filed application for their
impleadment, which was rejected on 04.05.2009. Thereafter, the
unsuccessful party did not challenge order dated 04.05.2009. The
63 lis pendens purchasers had mutually partitioned the purchased
property amongst themselves plot wise on 09.10.1992. Plot
Nos.80 and 81 ad-measuring 533.33 square yards came to the
share of respondent No.1-Smt. Vijay Laxmi and Plot No.91 ad-
measuring 166.66 square yards came to the share of respondent
No.2-Smt. Madhu Rathi. The nine plaintiffs of the restored suit
moved an application on 01.06.2004 before the trial Court to
withdraw the suit on the ground of compromise between the
parties. The withdrawal was allowed, however, respondent Nos.1
and 2 namely Smt. Vijay Laxmi and Smt. Madhu Rathi
respectively, later on asserted that they had not signed on the
compromise petition nor had instructed their counsel to withdraw
the suit. Consequently on the prayer of respondent Nos.1 and 2,
the suit was restored but other seven purchaser/plaintiffs did not
contest the matter thereafter. Even after rejection of the plaint
under Order VII Rule 11 C.P.C. on the ground that remedy to the
plaintiffs was before the Execution Court, respondent Nos.1 and 2
had not filed the appeal, wherein the judgment of restoration of
[2025:RJ-JD:22639] (5 of 7) [CRW-5/2025]
the suit was passed after setting aside rejection of plaint. Though
the remaining plaintiffs of the suit are arrayed as party respondent
Nos.6 to 12 in this review petition. They need not be required to
be noticed as they had not contested the suit, rather had
withdrawn the suit itself. The provisions of Order XLI Rule 14(4)
C.P.C. clearly stipulates that the party, who has not contested the
suit are not necessary to be noticed in appeal. Identical provision
is there under Order XXII Rule 4(4) C.P.C. in respect of deceased
respondent who had not filed written statement during trial.
6. In their reply, respondent Nos.1 and 2 have not denied about
partition of the property by all the 63 purchasers nor they have
specifically denied that other purchasers, at different stages, left
the suit proceeding.
7. Contention of the petitioner is that it be clarified that
restoration of the plaint would be qua the interest of the plaintiffs
i.e. (respondent Nos.1 and 2) in the suit property and not in
respect of share of other purchasers, who have not chosen to
proceed with their claim either due to compromise or otherwise.
8. Mr. Sajjan Singh Rajpurohit, learned counsel for the
respondents opposed the prayer, however, has not disputed
partition of the purchased property by 63 purchasers and
allotment of the referred plot to respondent Nos.1 and 2.
Therefore, for substantial justice, the restored suit would remain
confine to the interest of plaintiff Nos.1 and 2 namely Smt. Vijay
Laxmi and Smt. Madhu Rathi in Plot Nos.80 and 81 as well as 91
respectively.
9. Some other purchasers had approached in the appeal under
Order I Rule 10 C.P.C. with specific identity of plot allotted to
[2025:RJ-JD:22639] (6 of 7) [CRW-5/2025]
them. But their prayer under Order I Rule 10 C.P.C. was refused.
Hence, for substantial justice, sufficient reason is there to clarify
that the restored plaint would confine to the referred plots of the
plaintiffs (respondent Nos.1 and 2), who are contesting the suit.
10. Other grounds raised as ground for review are already
discussed in the impugned judgment and they are not new facts.
This Court in review cannot sit as a Court of appeal to re-examine
the correctness of judgment and decree passed by this Court.
11. Learned counsel for the respondent Nos.1 and 2, who are
contesting the matter, raised preliminary objection that since the
petitioner has sold the suit property to respondent No.13 Smt.
Deepmala during pendency of the appeal, the petitioner lost right
title and interest in the suit property and as such was incompetent
to file review petition.
12. This Court does not find any merit in the aforesaid
submission because lis pendens purchaser i.e. respondent No.13
would get what the petitioner would have. Hence, it cannot said
that the petitioner has lost interest/any claim in the suit after
transfer to respondent No.13. Moreover, respondent No.13 has
already appeared through 'Vakalatnama' but has not opposed the
prayer of the petitioner especially on the ground that the
petitioner has no interest in the suit property.
13. Learned counsel for the respondents next contends that the
review petition has been filed by Mr. Nishit Shah, learned counsel
who was not a counsel for the petitioner in appeal, therefore,
review is not maintainable through a counsel, who was unaware of
the facts and circumstances under which the appeal was decided.
[2025:RJ-JD:22639] (7 of 7) [CRW-5/2025]
14. Learned counsel has placed reliance on the judgment of the
Hon'ble Supreme Court in T.N. Electricity Board and Another
Vs. N. Raju Reddair and Another reported in (SC) 1997 AIR
1005. The aforesaid case is not helpful in the facts and
circumstances of this case to the respondent Nos.1 and 2 as in
that case, after dismissal of SLP, a new counsel filed review
petition and after dismissal of the review petition, a third new
counsel filed application for clarification.
15. In the case on hand, the appeal of the petitioner was not
dismissed, rather appeal brought by respondent Nos.1 and 2 was
allowed and thereafter this is first review petition by the petitioner.
16. On careful consideration of the arguments advanced by the
parties, this Court is of the view that in fact no error has been
pointed out in the judgment passed by this Court. However, the
clarification sought for was genuine for substantial justice in the
matter.
17. Therefore, as discussed above in the facts and circumstances
of the case, it is clarified that the restored suit would confine to
the specific plot allotted to the plaintiff-respondent Nos.1 and 2 in
the background of the developments which took place prior to the
appeal aforesaid.
(BIRENDRA KUMAR),J
deep
Powered by TCPDF (www.tcpdf.org)
