Dismissed

Municipal Board and Anr. v. the District Judge and Anr.

Rajasthan HC12 Sept 2019CW/2498/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an appellate order that restored a civil suit dismissed for non-prosecution. Finding the plaintiff an illiterate woman with no resulting prejudice to defendants, the Court held there was no illegality in restoring the suit and directed the trial court to conclude the trial within six months.

What did the court decide?

Writ petition dismissed; trial court directed to conclude trial within six months.

Municipal Board and Anr. Vs the District Judge and Anr. — Property and Title | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 2498/2010

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Municipal Board, Sawai Madhopur Through Its Executive Officer.

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The Executive Officer, Municipal Board, Sawai Madhopur (Chairman, Municipal Board, Sawai Madhopur)

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----Petitioners

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Versus

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The District Judge, Sawai Madhopur, Rajasthan.

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Smt. Kamla W/o Prabhu Singh B/c Caste Rajput, Warehouse Colony, Sawai Madhopur, Rajasthan.

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----Respondents

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For Petitioner(s) : Mr. Brij Kishore Sharma For Respondent(s) : Mr. R.P. Garg

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HON'BLE MR. JUSTICE INDERJEET SINGH

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Order

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12/09/2019

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This writ petition has been filed by the petitioner under Article 226 & 227 of the Constitution of India challenging the order passed by the learned District Judge, Sawaimadhopur dated 26.08.2009 whereby the appeal filed by the respondent no.2 (plaintiff) was allowed and the suit was restored to its original number with direction to the court below to decide the matter after affording opportunity to both the parties.

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Brief facts of the case are that the respondent no.2 (plaintiff) filed a suit before the learned trial court for permanent injunction with regard to the property of which mention has been made in para no.1 of the plaint stating therein that she has purchased the

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(2 of 4)

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[CW-2498/2010]

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said property from Sherpur Panchayat and since then she is in possession of the property and prayed for permanent injunction.

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The petitioners (defendants) filed reply and stated that the District Collector, Sawaimadhopur vide order dated 13.10.1965 withdrew the powers of the said Panchayat of selling property and such powers were vested to the notified area committee constituted on 27.09.1965 and thus the plaintiff is an encroacher over the said government land. 4. On the basis of the pleadings of the parties, issued were framed by the learned trial court and the case was fixed for plaintiff’s evidence. On 11.03.1999 the said suit was dismissed for non-prosecution.

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The plaintiff filed application for restoration of the said suit, along with her affidavit and application under section 5 of the Limitation Act, stating therein that she being illiterate lady, her husband was pursuing the matter before the Court and in the year 2000 her husband died and she came to know about the civil suit when she found the relevant papers at home, then she immediately applied for certified copy of the order dated 11.03.1999, which revealed that the said suit has been dismissed in default and non-prosecution.

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The petitioners-defendants filed reply to the said application and denied the claim of the plaintiff.

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The learned trial court after hearing the parties, dismissed the restoration application vide order dated 04.07.2007, being aggrieved the plaintiff filed appeal before the learned District Judge, Sawaimadhopur which was allowed vide order dated 26.08.2009 as stated here-in-above. Hence, the present writ

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(3 of 4)

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[CW-2498/2010]

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petition has been filed by the petitioners defendants challenging the order dated 26.08.2009.

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Heard counsel for the parties and perused the material on record.

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Counsel for the petitioners submits that learned Appellate Court has erred in condoning the delay occurred in filing the restoration application. Counsel further submits that ample opportunity was afforded to the respondent -plaintiff to adduce evidence in support of her claim but she failed to do so and lastly prayed that the order of the Appellate Court be set aside.

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Counsel for the respondent No.2 submits that she is an illiterate lady and her husband expired in the year 2000 who used to pursue the litigation on her behalf before the Court and she was unaware of the stage of the case and she only came to know in the year 2006 about the said matter, then she filed the application for restoration of the said civil suit. 11. Counsel further submits that on restoration of the said civil suit no prejudice is going to be caused to the petitioners defendants as they also have sufficient opportunity to lead evidence in support of their case before the learned trial court. 12. In support of the contentions, counsel for the respondent relied upon the judgment in the matter of Prithvi Singh Vs. State of Raj. & Ors., reported in 2006(4) RLW2865 where in para-14 it has been observed as under :-

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In the case of Ramchandra Shankar Deodhar & Ors., (supra), there was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, the Supreme Court emphatically observed that there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. There is

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(4 of 4)

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[CW-2498/2010]

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no lower limit and there is no upper limit. It will all depend on what the breach of the Fundamental Right and the remedy claimed are. In Tilokchand Motichand & Ors. (supra), speaking for the constitutional Bench, (Hon’ble) Hidayatullah, C.J., as His Lordship then was, observed that where there is appearance of avoidable delay and this delay affects the merits of the claim, the Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction, therefore, the question is one of discretion for this Court to follow from case to case and in a suitable case the Court may entertain such a petition even after a lapse of time.

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This court has considered the submissions.

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The writ petition filed by the petitioners deserves to be dismissed for the reasons; firstly the respondent no.2 plaintiff is an illiterate lady and secondly no prejudice in either way is going to be caused to the petitioners-defendants and in my considered view no illegality has been committed by the learned Appellate Court in allowing the appeal filed by the respondent no.2 plaintiff thereby restoring the civil suit to its original number.

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In that view of the matter, the writ petition filed by the petitioners defendants is dismissed. Looking to the pendency of the suit since 1992, the learned trial court is directed to expedite and conclude the trial within a period of six months. A copy of this order be sent to the concerned trial court.

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(INDERJEET SINGH),J

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ANAND TANWAR /91

Municipal Board and Anr. v. the District Judge and Anr.

Case brief

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Municipal Board and Anr. v. the District Judge and Anr.

Case brief

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