Dismissed

Nitesh v. Gokul

Rajasthan HC12 May 2023CW/4084/2021

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging an order closing plaintiff's evidence in a partition suit. The Court found insufficient grounds for the delay in filing the writ petition and noted that petitioners repeatedly sought adjournments for submitting evidence without justification.

What did the court decide?

The instant writ petition and the stay application are dismissed; all pending applications disposed of.

Nitesh Vs Gokul — Partition | Rajasthan HC (2023)

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[2023/RJJD/014957]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 4084/2021

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Nitesh S/o Shree Gokul Ji, Aged About 34 Years, B/c Regar, R/o Regar Mohalla, Rajnagar, Tehsil And District Rajasamand (Raj.)

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Vinod S/o Shree Gokul Ji, Aged About 27 Years, B/c Regar, R/o Regar Mohalla, Rajnagar, Tehsil And District Rajasamand (Raj.)

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Raju S/o Shree Gokul Ji, Aged About 28 Years, B/c Regar, R/o Regar Mohalla, Rajnagar, Tehsil And District Rajasamand (Raj.)

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----Petitioners

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Versus

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1. Gokul S/o Late Shri Daula Ji, B/c Regar, R/o Regar Mohalla, Rajnagar, Tehsil And District Rajasamand (Raj.)

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1. Tulsiram S/o Shri Kesha Ji, B/c Balai, R/o Kucholi, Tehsil Nathdwara, District Rajsamand.

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Jagdish S/o Shri Nanuram, B/c Regar (Nuwal), R/o Bagundara, Post Khatamala, Tehsil And District Rajsamand.

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Shankarlal S/o Shri Bhagwan Ji, B/c Regar, R/o Mohi, Tehsil And District Rajsamand.

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The District Collector, Rajsamand, Tehsil And District Rajsamand (Raj.)

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Urban Improvement Trust, Through Its Commissioner, Uit Rajsamand (Raj.)

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----Respondents

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For Petitioner(s) : Mr. Vikram Sharma For Respondent(s) : Mr. O.P. Mehta, through VC Mr. Harshvardhan Rajpurohit

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HON'BLE DR. JUSTICE NUPUR BHATI

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Order

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12/05/2023

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1 . The instant writ petition has been filed by the petitionersplaintiff under Article 226 and 227 of the Constitution of India with the following prayers:-

(2 of 5)

[2023/RJJD/014957]

[CW-4084/2021]

“(i) by an appropriate, writ, order or direction the impugned order dated 10.07.2018 (Annexure-1) may kindly be quashed and set-aside.

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(ii) Any other writ, order or direction which this Hon’be Court deem just and proper in the facts and circumstances of the case, may kindly be passed in favour of the humble petitioner.

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(iii) Cost of this writ petition may kindly be allowed to the petitioner.”

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2 . Brief facts of the case are that:-

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The petitioners-plaintiffs filed a suit against the defendantsrespondents for partition, declaration and permanent injunction on the strength that the property in question was the ancestral property and the petitioners-plaintiffs are having share in the said property, as per the Hindu Succession Act, 1956. The petitionersplaintiffs are having equal share in the property, which was situated in revenue Village Kishorenagar Tehsil and District Rajsamand, Araji No.550, 551, 563 and 564, admeasuring 4 bighas and 1 biswa and the petitioners-plaintiffs are having a share of 1/28 in the land in dispute.

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3 . The entire land was an ancestral property and undivided property but father of the petitioner herein Shri Gokul sold the land comprising of Araji No.550 and 551 in favour of the respondent No.2 Tulsiram through a registered sale deed dated 03.03.1997 and the Araji No.563 and 564 in favour of one Jagdish son of Nenuram on 04.03.2008, and the same was registered at Sub-Registrar’s Office, Rajsamand. Jagdish son of Nenuram, had sold the land in favour of one Shankarlal son of Bhagwanji and the

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[CW-4084/2021]

(3 of 5)

sale deed was executed by Gokul Ji which is said to be void up to the share of the petitioners.

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4 . The learned court below, issued notice to the unserved respondents. After service of the notices, respondent No.4 filed written statement and no one appeared on behalf of the respondent No.1 and 3, therefore, ex-parte proceeding was initiated.

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5 . The learned court below framed issues on 09.01.2017, thereafter, the matter was listed for the petitioner’s evidence and the date was given as 14.04.2017. However, on the next date, presiding officer was on leave, therefore, the matter was adjourned and was directed to be listed on 01.08.2017. On that date, the petitioner’s advocate, sought time for plaintiffs evidence, therefore, the matter was adjourned and the next date was fixed for plaintiff’s evidence on 07.11.2017. However, on that day again, the petitioners-plaintiffs sought time which was allowed as last opportunity and the next date of hearing was fixed on 06.03.2018, but on that day, due to bonafide reasons, the counsel of the plaintiffs sought one more opportunity, which was given by the learned court below on the cost of Rs.300/- and the matter was adjourned and was directed to be listed on 10.07.2018. However, on the said date, the learned court below closed the evidence of plaintiff and the matter was fixed for the evidence of defendants.

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6 . Being aggrieved of the order dated 10.07.2018 (Annexure-1) the petitioners-plaintiffs prefers the instant writ petition.

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7 . Learned counsel Mr. Vikram Sharma, representing the petitioners-plaintiffs, submits that:-

[2023/RJJD/014957]

[CW-4084/2021]

(4 of 5)

(a) The learned court below, has not appreciated the fact that the right and interest of the petitioners-plaintiffs as the petitioners-plaintiffs are daily wagers and for the purpose of earning their livelihood, they are working outside the districts and thus, the petitioners-plaintiffs could not be contacted and informed well in time about the respective dates for petitioner’splaintiff’s evidence before the learned court below.

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(b) A bare perusal of the order-sheets issued, is writ large that the learned court below had granted only three opportunities to the petitioner to lead their evidence i.e. on 18.08.2017, 07.11.2017 and 06.03.2018 and thereafter, on the next date of hearing, the petitioners’-plaintiffs’ evidence was closed and thus, the same is not justified.

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8 . Per contra, learned counsel Mr. O.P. Mehta, representing the respondents, submits that:-

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(a) There is a gross delay on the part of the petitioner in filing the present writ petition.

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(b) The suit was filed in the year 2015 and thereafter, on 16.10.2018, the said suit was dismissed in default. The petitioners-plaintiffs moved the restoration application after almost a year i.e. 25.11.2019 and the learned court below restored the suit on the said date i.e. 25.11.2019 itself.

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(c) However, the writ petition has been filed on 03.03.2021 i.e. after a gross delay of more than two years and therefore, the writ petition deserves to be dismissed on the ground of delay and latches.

[2023/RJJD/014957]

[CW-4084/2021]

(5 of 5)

9 . Heard learned counsel for the parties and perused the material available on record.

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10 . This Court, finds that there is no sufficient ground or reason submitted by the petitioners-plaintiffs to explain the reason of delay in not only filing of the application for restoration of the suit, but also in filing the present writ petition. Also, the petitionersplaintiffs had been afforded ample number of opportunities to submit their evidence before the learned court below and on every occasion, further time was sought by them. No justified reason whatsoever was submitted for taking an adjournment in the suit again and again and therefore, the learned court below has rightly closed the evidence of the petitioners-plaintiffs.

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11 . Thus, the impugned order dated 10.07.2018 ( Annexure-1 ), does not suffers from any illegality or any infirmity whatsoever, warranting interference therein.

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12 . Accordingly, the instant writ petition as well as the stay application, is dismissed.

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13 . All pending applications, if any, are also disposed of.

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(DR. NUPUR BHATI),J

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111-/Devesh-

Nitesh v. Gokul

Case brief

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Nitesh v. Gokul

Case brief

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