The High Court dismissed the second appeal against an ex-parte decree. The court held that the appellant knew of the decree earlier than claimed (September 2015 vs. January 2016), so the delay was not bona fide and condonable under Section 5.
The second appeal was dismissed as the delay in filing was not found to be bona fide.
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.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Second Appeal No. 367/2017
Kalyan Mal S/o Hardeva Ram Yadav, R/o Village Ram Singh Pura Shishyu, Tehsil Dantaramgarh, District Sikar Raj.
----Appellant-Defendant
Versus
----Respondents
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| For Appellant(s) | : | Mr. Abhisehk B. Sharma, Adv. on |
|---|---|---|
| behalf of Mr. Abhisar Bhanu, Adv. | ||
| For Respondent(s) | : | Mr. G. P. Sharma, Adv. |
| Mr. M. C. Gupta, Adv. |
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
DATE OF JUDGMENT 24/11/2023
This second appeal has been filed by the appellant-defendant (for short ‘the defendant’) under Section 100 CPC against the judgment and decree dated 02.02.2017 passed by Additional District Judge No.3, Sikar (for short ‘the appellate court’) in Civil Appeal No.10/2016 (CIS No.16/2016), whereby the appeal as well as application under Section 5 of the Limitation Act filed by the defendant have been dismissed and affirmed the judgment & decree dated 14.10.2014 passed by Senior Civil Judge, Dantaramgarh, District Sikar (for short ‘the trial court’) in Civil Suit No.82/2013 decreeing the respondent-plaintiff’s (for short ‘the plaintiff’) suit for permanent and mandatory injunction as also easement.
Learned counsel for the defendant submits that the appellate court wrongly dismissed the appeal filed by the defendant on delay. Learned counsel for the defendant also submits that plaintiff had filed a suit for permanent and mandatory injunction as also easement against the defendant. Defendant had engaged a lawyer Shri Yogesh Sharma and he had assured him that the defendant will be called whenever is required but he did not appear before the court below on 28.05.2014. On account of his nonappearance, the ex-parte proceedings were initiated against the
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defendant and court below decreed the suit ex-parte on 14.10.2014. Defendant did not have knowledge regarding initiation of ex-parte proceedings and ex-parte judgment and decree of the suit. Defendant came to know about these proceedings on 21.01.2016 and he obtained certified copy of the said judgment and decree on 28.01.2016. Defendant was not negligent. Neglegency was on account of his Advocate but the appellate court wrongly dismissed the application under Section 5 of the Limitation Act. Delay in filing the appeal was bona fide. So, judgment of the appellate court be set aside and the matter be remanded back for fresh adjudication on merit.
Learned counsel for the plaintiff has opposed the arguments advanced by learned counsel for the defendant and submitted that defendant wrongly stated that he had knowledge regarding exparte decree on 21.01.2016. Defendant had received copy of the entire file of civil suit No.82/13 on 14.09.2015 by Advocate Shri Tara Chand Yadav. So, he had knowledge regrading ex-parte decree but he had wrongly stated that he obtained knowledge regarding ex-parte decree on 21.01.2016. So, delay in filing the appeal is not bona fide. So, appellate court rightly dismissed the appeal filed by the defendant. So, appeal be dismissed.
I have considered the arguments advanced by learned counsel for the defendant as well as learned counsel for the plaintiff.
It is an admitted position that during trial, summons were served to the defendant and defendant had engaged a lawyer. After that, on account of non-appearance of lawyer, ex-parte proceedings were initiated against the defendant and suit was
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decreed ex-parte on 14.10.2014. Contention of the defendant that he got knowledge regarding ex-parte decree on 21.01.2016 is not corroborating from the record because defendant had received copy of entire file of civil suit No.82/13 on 14.09.2015 by Advocate Shri Tara Chand Yadav. The appellate court while dismissing the appeal clearly mentioned that defendant got knowledge regarding ex-parte decree on 14.09.2015. So, defendant wrongly mentioned in the appeal as well as in the application under Section 5 of the Limitation Act that he got knowledge regarding ex-partee decree on 21.01.2016. So, in my considered opinion, delay in filing the appeal was not bona fide. So, the appellate court rightly dismissed the appeal filed by the defendant.
Therefore, no substantial question of law, as suggested by learned counsel for the defendant in the memo of appeal does arise. So, present appeal being devoid of merit, is liable to be dismissed, which stands dismissed accordingly.
Pending application(s), if any, stand(s) disposed of.
(NARENDRA SINGH DHADDHA),J
Jatin /141
2 issues framed by the court
Whether the delay in filing the second appeal by the appellant was bona fide given earlier knowledge of the ex-parte decree.
Whether the appellant successfully invoked Section 5 of the Limitation Act to condone the delay in filing the appeal.
2 provisions across 2 enactments
Kalyan Mal S/o Hardeva Ram Yadav
Hanuman S/o Goruram Kumawat
Madan Lal S/o Bhagwana Ram
Rameshwar Lal S/o Daula Ram
Ram Chandra S/o Gulla Ram
Devi Lal S/o Ladu Ram
Narendra Singh Dhaddha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
