Dismissed

Patiram S/O Shri Chhidda Lal v. Ashok Kumar S/O Om Prakash

Rajasthan HC19 Feb 2020CMA/601/2020

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a restoration application and a request for condonation of delay. The single-judge High Court upheld the impugned order, finding the 22-month delay unjustified and reiterating the duty of parties to stay in contact with counsel.

What did the court decide?

The applications for restoration of appeal under Order 41 Rule 19 CPC and condonation of delay under Section 5 of the Limitation Act were dismissed; the stay application also stands dismissed.

Patiram S/O Shri Chhidda Lal Vs Ashok Kumar… — Civil Procedure and Limitation | Rajasthan HC (2020)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Miscellaneous Appeal No. 601/2020

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Patiram S/o Shri Chhidda Lal, B/c Brahmin, R/o Mohalla Kayasthpara, Badi, Tehsil Badi, District Dholpur

¶4

----Appellant

¶5

Versus

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Ashok Kumar S/o Om Prakash, B/c Brahmin, R/o Mohalla Kayasthpara, Badi, Tehsil Badi, District Dholpur

¶7

Mst. Sarbati D/o Baliram, B/c Brahmin, R/o Mohalla Kayasthpara, Badi, Tehsil Badi, District Dholpur (Deceased)

¶8

2/1. Ram Prakash S/o Keshav Dev, B/c Brahmin, R/o Mohalla Kayasthpara, Badi, Tehsil Badi, District Dholpur (Deceased)

¶9

2/1/1. Smt. Bhagwan Devi W/o Late Ram Prakash, B/c Brahmin, R/o Mohalla Kayasthpara, Badi, Tehsil Badi, District Dholpur

¶10

2/1/1. Vijay Kumar

¶11

2/1/3. Rakesh Kumar S/o Ram Prakash, B/c Brahmin, R/o Mohalla Kayasthpara, Badi, Tehsil Badi, District Dholpur

¶12

2/1/4. Smt. Kusuma D/o Late Ram Prakash W/o Ramniwas, B/c Brahmin, R/o Village Japawali, Tehsil Badi District Dholpur

¶13

2/1/5. Smt. Guddi D/o Late Ram Prakash W/o Rajendra, B/c Brahmin, R/o Village Veerpur, Tehsil Badi, District Dholpur

¶14

2/1/6. Smt. Lata D/o Late Ram Prakash W/o Nathilal, B/c Brahmin, R/o Village Abdulpur, Tehsil Badi, District Dholpur

¶15

2/1/7. Smt. Maya D/o Late Ram Prakash W/o Nathilal, B/c Brahmin, R/o Master Colony, Near Patwargar, Bye Pass Road, Badi District Dholpur

¶16

2/2. Om Prakash S/o Keshav Dev, B/c Brahmin, R/o Mohalla Kayasth Para, Badi, Tehsil Badi, (Deceased)

¶17

2/2/1 Smt. Munni D/o Om Prakash W/o Om Prakash, B/c Brahmin, R/o Village Pahari Marena, Tehsil Rajakhera, District Dholpur

¶18

2/2/2. Smt. Mithlesh D/o Late Om Prakash W/o Ballaram, B/c

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(2 of 4)

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[CMA-601/2020]

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Brahmin, R/o Master Colony, Near Patwargahr, Bye Pass Road, Badi District Dholpur

¶22

----Respondents

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For Appellant(s) : Mr. Raj Kamal Gaur

¶24

HON'BLE MR. JUSTICE PRAKASH GUPTA

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Order

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19/02/2020

¶27

This appeal has been filed by the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’) against the order dated 19.10.2019 passed by the Trial Court in Civil Misc. Case No. 40/2013, whereby the applications filed by the plaintiff under Order 41 Rule 19 CPC and Section 5 of the Limitation Act have been dismissed.

¶28

Facts of the case are that the plaintiff filed a suit for declaration and permanent injunction. The same was dismissed by the Trial Court vide its judgment dated 24.01.2004. Aggrieved therefrom the plaintiff filed an appeal before the Appellate Court, which was dismissed in default on 13.11.2011. Thereafter, the plaintiff filed an application for restoration of the appeal along with an application under Section 5 of the Limitation Act. The Appellate Court vide its order dated 19.10.2019 dismissed the aforesaid applications. Hence, this appeal.

¶29

Learned counsel for the plaintiff submits that his counsel assured him that he was not required to remain present in Court on any date of hearing and he would be called as and when required. Thereafter, on 24.01.2004 the plaintiff was not present in the Court. It is further submitted that his advocate was also not

¶30

(3 of 4)

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[CMA-601/2020]

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present because he was busy in another court. He further submits that the appellant came to know about the order dated 13.11.2011 on 24.09.2013 when he contacted his counsel. It was also submitted that on 27.9.2013, the plaintiff’s son filed the application for obtaining the certified copy of the order, which was made available to him on 30.9.2013. It was also submitted that on 28.09.2013, daughter-in-law of the plaintiff fell ill and for her treatment she was admitted in Hospital. After regaining health by his daughter in law, the plaintiff came to Dholpur, engaged the counsel and filed an application for restoration of the appeal along with an application under Section 5 of the Limitation Act for condonation of delay was filed, however, the learned Court below has cursorily dismissed the same. Hence, the impugned order is liable to be set aside.

¶33

Heard. Considered.

¶34

It is an admitted fact that the appeal of the plaintiff was dismissed in default on 13.12.2011. The court below while dismissing the appeal observed that as per Article 122 of the Limitation Act, 1963, restoration application was required to be filed within 30 days from the date of dismissal of the appeal, but in the instant case, the application under Order 41 Rule 19 CPC was filed with a delay of about 22 months and no cause much less sufficient cause was shown for this inordinate delay. The Trial Court while dismissing the application under Section 5 of the Limitation Act relied on the judgment passed by the Co-ordinate Bench of this Court in the case of Smt. Meena Vs. Kailash Chand reported in 2019 (1) DNJ Rajasthan 47, wherein it has been held that it is the duty of the party concerned to remain in

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(4 of 4)

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[CMA-601/2020]

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contact with his/her advocate and to get information on regular basis. No case was found to have been made out for condoning the delay and accordingly, the appeal was dismissed.

¶38

I am in agreement with the finding arrived at by the learned Court below and find no good ground to interfere with the order passed by the Court below.

¶39

For the aforesaid reasons, I find no force in this appeal. It is accordingly dismissed.

¶40

Consequent upon the dismissal of the appeal, the stay application also stands dismissed.

¶41

(PRAKASH GUPTA),J

¶42

DILIP KHANDELWAL /15

Patiram S/O Shri Chhidda Lal v. Ashok Kumar S/O Om Prakash

Case brief

What is this about?

What did the court decide?

Patiram S/O Shri Chhidda Lal v. Ashok Kumar S/O Om Prakash

Case brief

What is this about?

What did the court decide?

What the court decided

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