Back
2012 Supreme(Raj) 419
RAJASTHAN HIGH COURT
Jaipur Bench
Kani Devi (Smt.) & Anr. Vs. Ramesh Chand & Ors. (Agarwal, J.)
HON'BLE PRASHANT KUMAR AGARWAL, J.
Kani Devi (Smt.) & Anr.
Versus
Ramesh Chand & Ors.
S.B. Civil Misc. Application No. 3107 of 2007, decided on 30.03.2012
N.L. Agrawal, for Appellants;
B.L. Agarwal, for Respondents
Headnote:Limitation Act, 1963, Sec. 5 — Condonation of delay — Delay of 3541 days in filing appeal — Appellants are illiterate women from rural back grounds — Held — Expression `sufficient cause' within the meaning of Sec. 5 should receive a liberal construction so as to advance substantial justice but the principle is applicable only when no negligence or inaction or want of bonafides is imputable to the party concerned — If a party is guilty of negligence, inaction and latches, discretion vested in the court to condone delay caused cannot be exercised in favour of such a party — From the very beginning, the appellants has been very negligent and even after being made aware of the fact, did not take any step to file appeal and waited till 18.1.2007 without any reasonable and plausible cause. (Paras 15 to 18)
Application and appeal dismissed.
ifjlhek vf/kfu;e] 1963] /kkjk 5 & foyEc ekQh & vihy nk;j djus esa 3541 fnol dk foyEc & vihykFkhZx.k xzkeh.k ifjos'k dh vf'kf{kr efgyk,a gS & vfHkfu/kkZfjr & /kkjk 5 ds vUrxZr ^^i;kZIr gsrq** vfHkO;fDr dk mnkj vFkZ esa iz;ksx djuk pkfg;s rkfd lkjHkwr U;k; fd;k tk lds ysfdu ;g fl)kUr dsoy rHkh ykxw gksrk gS tc lEcfU/kr i{kdkj ij mis{kk ;k vdeZ.;rk ;k ln~Hkkouk dh deh dk vkjksi ugha gks & ;fn i{kdkj mis{kk] vdeZ.;rk rFkk xQyr dk nks"kh gks rks ,sls i{kdkj ds i{k esa U;k;ky; esa fufgr foosdkf/kdkj dk iz;ksx foyEc ekQh nsus gsrq ugha fd;k tk ldrk & vkjEHk ls gh vihykFkhZx.k cgqr gh ykijokgh rFkk bl rF; ls voxr djkus ds mijkUr Hkh vihy nk;j djus gsrq dksbZ dne ugha mBk;k rFkk fnukad 18-1-2007 rd bUrtkj djrs jgs vkSj og Hkh fcuk fdlh rdZ laxr ,oa Lohdk;Z dkj.k lsA ¼in la[;k 15 ls 18½
vkosnu ,oa vihy [kkfjt dhA
2. It has been averred in the application that when they were served with notices for appearance issued by the Court below in Execution Case No. 41/2003, they engaged advocate Shri S.D. Sharma and asked him to make necessary inquiry about the case and thereafter it was informed by Mr. Sharma to them that an exparte decree dated 13.5.1997 has been passed by the court below in Suit No. 68/96 filed by the respondents for specific performance of agreement of sell dated 16.7.93 and thereby they were for the first time made aware of the fact that such an exparte decree has been passed against them. It was further averred by them that they being illiterate ladies residing in villages and being unaware of legal provisions and court procedures could not file the appeal in time and as soon as they were advised to file appeal, they without any delay has filed the same.
3. Reply to the application was filed by the respondents and apart from other facts it was averred by them that the appellants filed an application under Order 9 Rule 13 CPC to set aside the impugned judgment and decree dated 13.5.97 in the court below on 18.2.1998 as CMA No. 118/98 and the same was dismissed by the Court below vide order dated 25.1.2002. It was further averred by the respondents that the appellants have falsely stated that they for the first time made aware of the impugned judgment and decree dated 13.5.97 when they were served with notices issued by the Court below in Execution Case No. 41/2003.
4. Rejoinder to the reply was filed by the appellants stating therein that no application under Order 9 Rule 13 CPC was ever filed by them as they were not aware of the fact that an exparte decree against them has been passed in Civil Suit No. 68/1996 on 13.5.1997. It was also averred by them that they did not engage any advocate for filing the said application and the "Vakalatnama" allegedly filed on behalf of them by advocate Shri S.K. Saksena do not contain many essential details and particulars as mentioned in the rejoinder. It was alleged by the appellants that advocate Shri S.K. Saksena in collusion with the respondents, who were having some blank papers with them signed by the appellants, has misused and abused the process of law.
5. The application filed under Sec.5 of the Limitation Act was considered by this Court and vide order dated 17.1.2009 it was directed that an inquiry shall be held by the Court below on the issues which have been raised in the application, the reply and the rejoinder and after allowing the parties to lead evidence, the Court below shall remit its report with findings to this Court.
6. In compliance of that order, an inquiry was held and during that inquiry evidence was collected and the learned Court below has sent its findings with reasons.
7. Before proceeding further, it is useful to narrate some of the relevant facts in brief necessary for the disposal of this application which are as below:-
(i) Regular Civil Suit No. 68/1996 was filed by the respondents against the appellant before the Court below for specific performance of agreement to sell allegedly executed by the appellants on 16.7.1993;
(ii) An order was passed on 8.11.1996 to proceed exparte against the appellants finding that they failed to appear before the Court below despite due service of summons;
(iii) Exparte judgment and decree was passed in the above suit on 13.5.1997;
(iv) On 20.1.1998 application No. 1115 was filed by Advocate Smt. Nirmala Sharma on behalf of appellants in C.
