Dismissed

Lrs of Basantilal v. Shyam Sunder

Rajasthan HC30 Jan 2024CMA/1189/2020

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed an appeal against the rejection of an application to condone delay under Section 5 of the Limitation Act and Order 9 Rule 13 CPC. Holding that applicants were served and aware of the impugned decrees, the court found the delay in filing the application unjustified.

What did the court decide?

Appeal dismissed; impugned order upholding rejection of condonation of delay was maintained.

Lrs of Basantilal Vs Shyam Sunder — Partition | Rajasthan HC (2024)

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[2024:RJ-JD:4934]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 1189/2020

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Lrs of Basantilal, S/o Shri Anandilal Ji Mathur

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1/1. Smt. Renu W/o Shri Basantilal, Aged About 60 Years, R/o 203, Perl Green Acre, New Sanganer Road, Jaipur.

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1/2. Miss Toshi D/o Shri Basantilal, Aged About 38 Years, R/o 81-K Road, Bhupalpura, Udaipur At Present Jaipur.

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1/3. Miss Soumya D/o Shri Basantilal, Aged About 34 Years, R/o 81-K Road, Bhupalpura, Udaipur At Present Jaipur.

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Alka Vyas W/o Shri Himmat Kumar Vyas, Aged About 1 Years, R/o 365, J Road, Bhupalpura, Udaipur Instead Of Smt. Bela Soni W/o Shri Prakash Chandra Soni, Age About 55 Years, R/o 4 Ch-4, Hiranmagri, Sector No. 4 Udaipur.

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----Appellants

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Versus

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Shyam Sunder S/o Shri Balkrishan Aameta, R/o Brahmpole, Udaipur. At Present 379, Master Colony, Amba Mata Scheme, Udaipur.

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Shivswaroop S/o Shri Balkrishan Aameta, R/o Brahmpole, Udaipur. At Present 379, Master Colony, Amba Mata Scheme, Udaipur.

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Lrs Of Late Shri Krishan Chandra Aameta, Udaipur

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3/1. Musmmat Panna Devi W/o Late Shri Krishan Chandra Aameta, R/o Brahmpole, Udaipur.

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3/2. Smt. Durgesh Kumari D/o Late Shri Krishan Chandra Aameta, W/o Shri Shobhalal Aameta, R/o Sangwa, Tehsil Mawali, District Udaipur.

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3/3. Smt. Saroj D/o Late Shri Krishan Chandra Aameta, W/o Shri Shuresh Aameta, R/o Sangwa, Tehsil Mawali, District Udaipur.

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3/4. Smt. Devendra D/o Late Shri Krishan Chandra Aameta, W/ o Shri Dinesh Aameta, R/o Bada Holithada, Nimbaheda, District Chittorgarh.

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3/5. Smt. Manju D/o Late Shri Krishan Chandra Aameta, W/o Shri Sohanla Aameta, R/o Village Titradi, Tehsil Girwa, District Udaipur.

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Jagdish Chandra S/o Shri Balkrishan Aameta, R/o Radheyshyam Ji Ki Gali, Inside Brahmpole, Udaipur.

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Bhanwarlal S/o Shri Ramnarayan Vyas, R/o C/o Bhagwatilal Aameta, Ramnivas, Brahmpole, Udaipur.

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Govindlal S/o Shri Ramnarayan Vyas, R/o Brahmpole Udaipur (Deceased)

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Lrs Of Late Shri Krishan Vallabh, S/o Shri Murlidhar Aameta

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7/1. Smt. Pranbai W/o Late Shri Krishan Vallabh, R/o Radheyshyam Ji Ki Gali, Inside Brahmpole, Udaipur.

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7/2. Smt. Pushpa Bai D/o Late Shri Krishan Vallabh, R/o Radheyshyam Ji Ki Gali, Inside Brahmpole, Udaipur.

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7/3. Chandra Prakash S/o Late Shri Krishan Vallabh, R/o Radheyshyam Ji Ki Gali, Inside Brahmpole, Udaipur.

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Vaidh Shyam Sunder Vyas S/o Shri Fatahlal Dashora, R/o Gali Situated Opposite Varighat, Inside Brahmpole, Udaipur.

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Durgashanker S/o Shri Neelkanth Vyas, R/o Golden Engineering Works, Inside Udaipole, Udaipur (Deceased)

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Sunderlal S/o Shri Neelkanth Vyas, R/o Charbhuja Mandir Ka Chowk, Gali Situated Opposite Varighat, Inside Brahmpole, Udaipur (Deceased)

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Laxmilal Vyas S/o Shri Harivallabh Vyas Aaneta, R/o Pathko Ki Pole, Maldas Street, Udaipur (Deceased)

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Lrs Of Late Shri Pannalal Vyas, S/o Shri Hari Vallabh Vyas

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12/1. Dr. Suresh Aameta S/o Late Shri Pannalal Vyas, R/o Inside Brahmpole, Udaipur.

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12/2. Dr. Mahesh Aameta S/o Late Shri Pannalal Vyas, R/o Inside Brahmpole, Udaipur.

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12/3. Smt. Shehlata Aameta D/o Late Shri Pannalal Vyas, R/o Inside Brahmpole, Udaipur.

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12/4. Smt. Swarnlata @ Om D/o Late Shri Pannalal Vyas, R/o Inside Brahmpole, Udaipur.

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12/5. Smt. Rajanikanta D/o Late Shri Pannalal Vyas, R/o Inside Brahmpole, Udaipur.

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12/6. Smt. Sushila Devi W/o Late Shri Pannalal Vyas, R/o Inside Brahmpole, Udaipur. (Deceased)

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Gopal Vallabh S/o Shri Mukutlal, R/o Radheyshyam Ji Ki Gali, Inside Brahmpole Udaipur.

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Jay Vallabh S/o Shri Mukutlal, R/o Radheyshyam Ji Ki Gali,

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Inside Brahmpole Udaipur.

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Shiv Vallabh S/o Shri Mukutlal, R/o Radheyshyam Ji Ki Gali, Brahmpole Udaipur.

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Laxman Singh S/o Shri Bhanwar Singh Rathore, R/o A-D, Kalaji Goraji, Udaipur.

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Ramesh Kumar S/o Shri Karam Chand Diwan, R/o 521, Hiran Magri, Sector H, Udaipur.

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Smt. Pushpa W/o Shri Ramesh Kumar, R/o 521, Hiran Magri, Sector No. 1, Udaipur

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Miss Yashoda Soni D/o Shri Prithviraj Soni, R/o 567, Hiran Magari, Sector No. 4, Udaipur.

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Smt. Panna Devi W/o Shri Krishan Chand Vyas, R/o 38, Karamsheel Marge, Brahmpole , Udaipur.

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Harisingh Panwar S/o Shri Jai Signh Panwar, R/o 521, Hiran Mangri, Sector No. 4, Udaipur

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Smt. Gunwati W/o Shri Devidas Raisinghani, R/o C/o Bhagwandas Motwani, Diggi Chowk, Ajmer.

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Bhanwarlal S/o Shri Daulat Ram Bhat, R/o 436, J-Road, Bhupalpura, Udaipur.

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Smt. Usha W/o Shri Jugal Singh Sisodiya, R/o 18, Sahiwalo Ki Gali, Bhatiyani Chohtta, Udaipur

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Shankerlal S/o Shri Udailal, R/o Rohanwada, District Dungarpur

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Mohanlal S/o Shri Mangilal Bhat, R/o New Colony, Bhuwana, District Udaipur

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Bhanwar Singh S/o Shri Samunder Singh, R/o 3-K-67, Prabhat Nagar, Hiran Magri, Sector No. 5, Udaipur. At Present Behind Dumper Workshop 133, Shrinath Nagar, Bedwas, Udaipur.

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Smt. Lehri Devi W/o Shri Bhanwarlal Bhat, R/o 263, Hiran Magri, Sector No. 4, Udaipur.

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Smt. Kanta Chawla W/o Shri Ram Chawla, R/o Shakti Nagar, Udaipur.

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Smt. Reva Diwakar W/o Late Shri Puranmal Diwakar, B/c Vaishnav, R/o Indokha, Police Station Gachhipura, District Nagaur.

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State Of Rajasthan, Through The Tehsildar, Girwa, Udaipur.

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(4 of 8) [CMA-1189/2020]

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[2024:RJ-JD:4934]

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Bakhtawar Singh S/o Shri Ghambhir Singh Rajput, R/o 109, Bhupalpura, Udaipur.

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Purushottam S/o Shri Maganiram Menariya, R/o Pratapnagar, Udaipur.

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Hari S/o Shri Vishnu Shakner Brahmin, R/o Bhatt Ji Ka Rawla, Udaipur.

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----Respondents

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For Appellant(s)	: Mr.	AjayVyas
For Respondent(s)	: Mr.	Vikas Balia, Sr. Advocate with
	Mr.	Khet Singh Rajpurohit

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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30/01/2024

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The present appeal has been preferred against the order dated 30.04.2019 passed by Additional District Judge No.3, Udaipur in Civil Case No.14/2013 whereby the application under Section 5 of the Limitation Act as preferred by the applicants to condone the delay caused in filing the application under Order 9 Rule 13, CPC has been rejected. The application under Order 9 Rule 13, CPC had been filed for setting aside of preliminary decree dated 18.12.2000 and final decree for partition dated 21.05.2004. 2. The case of the applicants was that they are the bonafide purchasers of the land in question which was sold out to them in the year 1986 by Balkrishna Aameta. Subsequently, a suit for partition was preferred by the sons of Balkrishna wherein, in the written statement, Balkrishna pleaded that the property in question was his self-acquired property and not a joint family property. However, in the year 2000, both Balkrishna and his sons entered into a compromise malafidely and in terms of the said

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compromise, the preliminary decree was passed on 18.12.2000 and subsequently, the final decree was passed on 21.05.2004. Vide the judgment dated 18.12.2000, it was observed by the Court that Balkrishna was not entitled to execute the sale deeds in favour of the applicants.

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The submission of the applicants was that although they had been impleaded in the suit as defendants, they were never served and were even not aware of the decrees in question passed by virtue of a compromise. It is only in the year 2011, when the notice of application under Order 9 Rule 13, CPC as preferred by one of the other purchasers, Usha, was published in the newspaper that the present applicants came to know about the decrees in question.

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The application as preferred by the present applicants has been rejected by the Court below with the specific finding that the applicants were very well served in the suit preferred by the sons of Balkrishna way back in the year 1986. Further, in the revenue suit preferred by one of the other purchasers, Bhanwar Singh, a counter claim was also preferred by the present applicants in the year 2009. Further, the order dated 30.04.2010 whereby the application under Order 7 Rule 11, CPC as preferred by the sons of Balkrishna was allowed, also makes a specific mention of both the decrees in question. Therefore, the Court concluded that it cannot be believed that the applicants were not aware of the decrees in question. The Court further found that even if the version of the applicants that they came to know about the decrees in question in the year 2011 through paper publication is deemed to be true, then also, there is no explanation as to why the application has

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been preferred in the year 2013 after a delay of two years since 2011.

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Learned counsel for the appellants submitted that the finding of the Court that the applicants were served in the original suit in the year 1986 is prima facie incorrect as they were never served in the suit. So far as filing of the counter claim in the revenue suit preferred by Bhanwar Singh is concerned, learned counsel submitted that the plaint of the said suit did not mention anything about the decrees in question. Neither did the counter claim as preferred by the defendants reflects so. Therefore, it cannot be presumed that the applicants were aware of the decrees in question at that point of time. So far as the delay of two years after 2011 is concerned, learned counsel submitted that the applicants, under the bonafide belief that appropriate orders would be passed in the application under Order 9 Rule 13, CPC preferred by Usha, chose to wait for the decision of the same. However, the application preferred by Usha was ultimately withdrawn in the year 2013 and therefore, the present application under Order 9 Rule 13, CPC was preferred by the present applicants.

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Per contra, learned Senior Counsel appearing for the respondents submitted that a bare perusal of the order-sheets of the original suit in question makes it clear that the applicants were served. Learned counsel also pointed out to order dated 30.04.2010 wherein the fact of both the impugned decrees has been clearly mentioned and the application under Order 7 Rule 11, CPC vide the said order, had been rejected only on the count of the decrees in question having been passed.

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Heard learned counsel for the parties and perused the material available on record as well as the record of the original suit No.311/1996 (288/1986).

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A perusal of the record makes it clear that the present applicants, that is, defendant Nos.16 & 20 were very much served and the said fact has been taken note of in the order dated 19.12.1986. Further, a perusal of the order dated 30.04.2010, placed on record as Annex.R2 along with reply to the stay petition in the present appeal, makes it clear that because of the preliminary decree dated 18.12.2000 and the final decree dated 21.05.2004 been passed and the sale-deeds in question having already been cancelled, it was concluded by the Court that no cause survived to Bhanwar Singh, the plaintiff therein and hence, proceeded on to dismiss the suit. Evidently, the present applicants were also a party to the said revenue suit and even preferred their respective counter claims in the same. It therefore, cannot be presumed that they were not aware of both the decrees in question.

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Further, even going by the submission of the applicants themselves, they came to know about the decrees in question in the year 2011. The reason as assigned for the delay of two years is also not plausible one as no party can be given any laxity on the ground that the party chose to wait for the decision to be passed in favour of some other litigant.

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The Hon'ble Apex Court in the case of M/s. Rup Diamonds & Ors. v. Union of India & Ors., (1989) 2 SCC 356 , while rejecting the petition on the ground of delay and laches held as under:

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"Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided."

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In view of the overall facts and observations as made above,

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no case for interference in the impugned order is made out.

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The appeal is hence, dismissed .

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Stay petition and all pending applications, if any, shall stand

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disposed of .

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(REKHA BORANA),J

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177-T.Singh/-

Lrs of Basantilal v. Shyam Sunder

Case brief

What is this about?

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Lrs of Basantilal v. Shyam Sunder

Case brief

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