Dismissed

Lrs of Chhotu Khan v. Smt. Maina Kumari and Anr.

Rajasthan HC15 May 2018CSA/160/2014

Case brief

AI extract

What is this about?

In this Second Appeal, the Rajasthan High Court rejected the contention of the appellants that the delay in filing an appeal against a specific performance decree was condonable. The court held that since the original defendant was alive for nine years after the decree, the legal representatives could not claim ignorance during that period, and the appeal failed.

What did the court decide?

The appeal under Section 100 CPC is dismissed as the application to condone delay under Section 5 of the Limitation Act is rejected.

Lrs of Chhotu Khan Vs Smt. Maina Kumari and Anr. — Specific Performance | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

¶2

JODHPUR.

¶3

¶4

S.B. CIVIL SECOND APPEAL NO. 160 / 2014.

¶5

Legal Representatives of Chhotu Khan S/o Shri Ismail Khan, by caste Muslim, R/o Village Sadari, District Pali,

¶6

Smt. Bibi Bano W/o Late Shri Chhotu Khan Ji, age 47 years,

¶7

Alladdin Shah S/o Late Shri Chhotu Khan Ji, age 29 years,

¶8

Dildar Shah S/o Late Shri Chhotu Khan Ji, age 22 years,

¶9

Latif Shah S/o Late Shri Chhotu Khan Ji, minor, through natural guardian of mother Smt. Bibi Bano W/o Late Shri Chhotu Khan Ji

¶10

Rafiq Shah S/o Late Shri Chhotu Khan Ji, minor, through natural guardian of Mother Smt. Bibi Bano W/o Late Shri Chhotu Khan Ji

¶11

Rajjak Shah S/o Late Shri Chhotu Khan Ji, minor, through natural guardian of mother Smt. Bibi Bano W/o Late Shri Chhotu Khan Ji

¶12

All by caste Musalman, All R/o Village Sadari, District Pali.

¶13

----Appellants/Defendants

¶14

Versus

¶15

Smt. Maina Kumari W/o Shri Kanti Lal Ji Jain, R/o Near Naya Baira, Sadari, Tehsil Desuri, District Pali.

¶16

----Respondent/Plaintiff

¶17

(2 of 4)

¶18

[CSA-160/2014]

¶19

Sattar Khan S/o Babu Khan Ji, by caste Muslim, R/o Sadari, Tehsil Desuri, District Pali.

¶20

----Respondent/Defendant

¶21

For Appellant(s) : For Respondent(s) :

¶22

Mr. Abhinav Jain. Mr. Sandeep Shah. Mr. Puneet Parihar.

¶23

JUSTICE DINESH MEHTA Judgment

¶24

15/05/2018

¶25

The present second appeal under Section 100 of the Code of Civil Procedure has been filed against the order dated 25.02.2014 passed by the learned Additional District Judge, Bali, District Pali (hereinafter referred as the “Appellate Court”) in Civil Appeal Decree No. 13/2012, whereby the appeal, filed by the appellantsdefendants against the judgment and decree dated 24.09.1999 passed by the learned Civil Judge (Junior Division), Desuri, District Pali (hereinafter referred as the “Trial Court”) in Civil Original Suit No. 28/1997, has been rejected on the ground of limitation.

¶26

The facts, in nutshell, relevant for the purpose of present appeal are that the plaintiff (respondent No.1 herein) had filed a suit for specific performance for execution of an agreement dated 24.08.1994 in relation to the house property situated in Sadari. The said suit came to be decreed by the Trial Court, vide judgment and decree dated 24.09.1999.

¶27

The legal representatives of the defendant No.1 – Chhotu Khan (appellants herein) filed an appeal against the said judgment

¶28

(3 of 4)

¶29

[CSA-160/2014]

¶30

and decree dated 24.09.1994, on 05.03.2012, along with an application under Section 5 of the Limitation Act. The appellants in their application under Section 5 of the Limitation Act stated that the defendant No.1 – Chhotu Khan was murdered on 18.02.2008 and thereafter, they (legal representatives of defendant No.1 – Chhotu Khan) came to know about the judgment and decree dated 24.09.1999, on receiving the notice of the execution proceedings on 15.12.2012.

¶31

The appellants made a feeble attempt to explain the delay by way of the application under Section 5 of the Limitation Act, that too confined to the fact that they were not aware of the judgment and decree dated 24.09.1999 passed by the Trial Court. There is no assertion, as to whether the defendant No.1 – Chhotu Khan was aware of the judgment and decree dated 24.09.1999 or not ?

¶32

The Appellate Court has rejected the said application under Section 5 of the Limitation Act filed by the appellants, vide its order dated 25.02.2014 and has held that the appellants have failed to explain the inordinate delay of 13 years.

¶33

I have heard Mr. Abhinav Jain, learned counsel for the appellants, and Mr. Sandeep Shah, learned counsel for the respondent-plaintiff, extensively.

¶34

Upon perusal of the order impugned dated 25.02.2014, this Court does not find any error or infirmity. The learned Court below was justified in rejecting the appellants’ application under Section 5 of the Limitation Act, by observing that after passing of the decree in the year 1999, the defendant No.1 – Chhotu Khan

¶35

(4 of 4)

¶36

[CSA-160/2014]

¶37

remained alive for 9 years, and yet he had not challenged the judgment and decree dated 24.09.1999.

¶38

In considered opinion of this Court, the present appellants, being the legal representatives of the defendant No. 1 – Chhotu Khan, having stepped in the shoes of the original defendant No.1, cannot plead beyond what was permissible to the defendant No.1. The explanation of the delay given by the present appellants, after 2012, cannot be considered sufficient for the delay of 12 years or at the best 9 years, till the defendant No.1 – Chhotu Khan was alive. The right of the appellants flow from the rights of the original defendant No.1 – Chhotu Khan. There is no explanation, worth the name, from the date of passing of the decree, i.e., 24.09.1999, till the defendant No.1 – Chhotu Khan expired on 18.02.2008.

¶39

The learned Court below has rightly rejected the application under Section 5 of the Limitation Act and the appeal in consequence thereto.

¶40

No question of law, much less any substantial question of law arises for consideration by this Court.

¶41

The appeal therefore fails.

¶42

/Mohan/40w

Lrs of Chhotu Khan v. Smt. Maina Kumari and Anr.

Case brief

What is this about?

What did the court decide?

Lrs of Chhotu Khan v. Smt. Maina Kumari and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Gautam Chand Vs the State through Dist. Collector and Anr.

Smt. Kamla Devi and Ors. Vs Rajendra and Ors.

Smt.Samaz Kanwar and Ors. Vs Rajkumari and Ors.

Lal Shanker Vs Kacharu and Anr.

Jaipur V.V.N. Ltd. and Ors. Vs Smt. Uma @ Fuma Devi

Shyam Sharma Vs Ratna Ram Saran and Anr.