In a civil appeal regarding a partition suit, the court dismissed the applicant's appeal and the application for condonation of delay under Section 5 of the Limitation Act, finding the appeal meritoriously groundless and the delay application laconic.
The application under Section 5 of the Limitation Act and the appeal were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil First Appeal No. 460/2017
----Appellants
Versus
----Respondents
For Appellant(s) : Mr. Trilok Joshi. For Respondent(s) : Mr. Aditya S. Rathore.
HON'BLE MR. JUSTICE ARUN BHANSALI J U D G M E N T
05/03/2021
This appeal is directed against judgment and decree dated 2.5.2016 passed by Additional District Judge, Srikaranpur, Sriganganagar, whereby, based on the compromise arrived at
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between the parties, the suit for partition filed by respondent No.1 has been decreed by the trial court.
The appeal is reported as barred by limitation by 371 days.
An application has been filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal.
Submissions have been made that the compromise was arrived at between the parties and was presented during illness of Kamal Kishore – husband / father of the appellants and that after the decree was passed on 2.5.2016, Kamal Kishore expired on 21.4.2017 and the appeal has been filed on 16.8.2017. It was submitted that on account of illness and eventual death of Kamal Kishore from the date of decree till filing of the appeal, the appellants could not file the appeal in time.
An additional affidavit was filed in support of the application, wherein, documents pertaining to kidney transplant in the year 2013 have been produced. However, apparently no document in support of the fact that Kamal Kishore was not well from the date of passing of the decree dated 2.5.2016, has been produced.
As the application filed under Section 5 of the Limitation Act was wholly laconic and though additional affidavit was filed, the same also did not deal with the period between 2.5.2016 to 16.8.2017 except for the fact that Kamal Kishore died on 21.4.2017, therefore, learned counsel for the appellants was heard on merit of the appeal to find out if there was any substance in the appeal to take the said aspect also into consideration for disposal of the application under Section 5 of the Limitation Act.
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Learned counsel for the appellants made submissions that the compromise was arrived at between the parties during illness of deceased Kamal Kishore and that he has not been given his due share by the impugned compromise decree and, therefore, the appellants are aggrieved by the said decree.
A perusal of the order passed by the trial court indicates that the plaintiff Pawan Kumar filed a suit for partition claiming 1/4th share in the suit property. Written statement was filed by deceased – Kamal Kishore on 12.12.2015 inter alia accepting all the averments made in the plaint and making the following additional prayer:-
vr% tokc nkok is'k djds fuosnu gS fd nkok ds vuqrks"k ,oa utjh uD'ks ds vuqlkj vxj oknh dk nkok fMxzh fd;k tkos ,oa eq> izfroknh ds fgLlk esa vk;k mDr edku esjs nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko ds uke fd;k tkosA vkidh vfr d`ik gksxhA"
Rest of the defendants also filed written statement on 12.12.2015 accepting the averments made in the plaint and praying that decree be passed based on the site map produced. Defendant No.4 – sister made additional submission that she has
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released her share in favour of the defendants and that she doesn’t want any share in the suit property.
Whereafter, the compromise signed by all the parties was presented on 12.12.2015, i.e. the same date on which the written statements were filed in the following terms:-
"vuoku lnj ds eqdnek esa ge i{kdkjku esa yksd vnkyr dh Hkkouk ls jkthukek dj fy;k gS rFkk ge i{kdkjku ds e/; mijksDr edku jkthukek esa fuEu izdkj ls mijksDr edku dk ?k: caVokjk fd;k gqvk gSA ftlds eqrkfcd edku dk mrjh 12&1@2 fgLlk oknh iou dqekj ds fgLlk esa rFkk mlds i'pkr~ oknh ds fgLlk ds lkFk fpirk nf{k.k dh rjQ dk 12&1@2 fgLlk oknh dh ekrk izfroknh la[;k 2 ukjk;.k nsoh ds fgLlk esa rFkk ukjk;.k nsoh ds fgLlk ds i'pkr~ nf{k.k dh rjQ 12&1@2 QqV fgLlk oknh ds firk ds izfroknh la[;k 1 ?ke.Mh yky ds fgLlk esa rFkk ?ke.Mh yky ds fgLlk ds i'pkr~ 'ks"k 12&1@2 QqV izfroknh dey fd'kksj ds fgLlk esa vk;k gqvk gS rFkk izfroknh la[;k 3 dey fd'kksj ds fgLlk esa vkbZ txg 12&1@2 X 31&1@4 QqV dks izfroknh la[;k 3 dey fd'kksj vius nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko ds gd esa viuk fgLlk NksMrk gS rFkk mDr fgLlk dks izfroknh la[;k 3 dey fd'kksj ds nksuks cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko dks fn;k tkosA
fygktk jkthukek vuqlkj nkok fMxzh fd;k tkuk
U;k; laxr gSA"
The Presiding Officer verified the contents of the compromise from all the parties and again obtained signatures of all the parties on the order sheet on the same date i.e. 12.12.2015.
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Whereafter, on 2.5.2016 i.e. after about 5 months from the date the verified compromise was filed, the decree was passed in the following terms:-
"fygktk oknhx.k dk okn foL) izfroknhx.k c:os jkthukek Lohdkj dj fMØh fd;k tkrk gS vkSj jkthukek ds vuqlkj lEifRr;ksa dk foHkktu bl izdkj fd;k gS fd &
fookfnr edku dk ?k: caVokjk ds eqrkfcd edku dk mRrjh 12@1&2 fgLlk oknh iou dqekj dks rFkk mlds i'pkr okmnh ds fgLLkk ds lkFk fpirk nf{k.k dh rjQ dk 12&1@2 QqV fgLlk oknh dh ekrk izfroknh laŒ 2 ukjk;.kh nqoh ds fgLlk ds i'pkr nf{k.k dh rjQ 12&1@ QqV fgLlk oknh ds firk izfroknh laŒ 1 ?keaMh yky dks rFkk ?keaMh yky ds fgLlk ds i'pkr 'ks"k 12&1@2 QqV tks izfroknh dey fd'kksj ds fgLlk esa vk;k gS o izfroknh laŒ 3 dey fd'kksj ds dFkukuqlkj dey fd'kksj ds fgLlk esa vkbZ txg 12&1@2 bUVw 31&1@4 QqV dk izfroknh la- 3 dey fd'kksj ds nksuksa cPpksa iq=h xfjek 'kekZ ,oa iq= ds'ko dks fn;k tkrk gSA mDrkuqlkj fMØh ipkZ cuk;k tkosA"
It is not the case of the appellants that after filing of the written statement and the compromise on 12.12.2015, which was verified by the Presiding Officer, till 2.5.2016, any application was filed by the deceased – Kamal Kishore seeking to resile from the said compromise and/or the written statement.
In view of the fact that the compromise had been arrived at based on the written statement as filed by deceased – Kamal Kishore, which is not disputed and finally the decree has been passed in terms of the prayer made in the suit, written statements
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and the compromise arrived at between the parties, there is hardly any ground in the appeal so as to seek interference in the impugned compromise decree.
Further, original defendant survived after the compromise decree dated 2.5.2016 till 21.4.2017 and did not challenge the same and after his death the appellants, his legal representatives have filed the appeal is also indicative of the fact that Kamal Kishore apparently was satisfied with the decree.
Learned counsel for the appellants made feeble submissions pertaining to the behaviour of the respondents qua the appellants post death of their husband / father, the same aspect, howsoever unfortunate, cannot be a reason to question the validity of the compromise decree passed by the trial court.
In view of the above fact situation, wherein, the application seeking condonation of delay is laconic and there is no substance at all in the appeal filed against the compromise decree, which is totally in consonance with the prayer made in the suit, written statements filed by all the parties including father / husband of the appellants and compromise filed by all the parties to the suit, the application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal does not deserves acceptance. The same is, therefore, dismissed.
Consequently, the appeal is also dismissed.
(ARUN BHANSALI),J
6-Sumit/-
2 issues framed by the court
Whether the application under Section 5 of the Limitation Act seeking condonation of delay deserves acceptance.
Whether there is any legal ground in the appeal against the compromise decree.
Legal Representatives of Shri Kamal Kishore
Pawan Kumar
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
