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2004 Supreme(Raj) 874
Rajasthan High Court
Honble SUNIL KUMAR GARG, J.
Balmukund Arora (since deceased) through Om Prakash - Appellant
Versus
State of Rajasthan & Ors. - Respondents
S.B. Civil Restoration Application No. 72 of 2004
Decided On : September 15, 2004
Anand Purohit, for Petitioner M.C. Bhoot, for Respondents Nos. 4 and 5 Shyam Ladhrecha, Addl. G.A.
Headnote:C.P.C., Order 22 Rule 4 read with Sec. 151; Constitution of India, Art. 226 – Restoration of writ petition – Delay of 8 years in filing amended cause title – Held – The L.Rs. of deceased had already been taken on record – Assigned sufficient ground and cause of delay in filing amended cause title – Law of limitation and provisions of C.P.C. not apply to writ proceedings – Delay deserves to be condoned – Interest of justice should not be defeated by rule of technicality – Writ petition restored. (Paras 18 to 20)
Application under order 22 Rule 4 CPC for bringing the LRs of deceased Balmukund on record was allowed by this Court vide order dated 12.7.1996 meaning thereby there was no delay in filing that application, but the delay, which has been caused in the present case was in filing of amended cause title and in my considered opinion, since law of limitation does not apply to writ proceedings and since provisions of CPC do not apply to writ proceedings and since sufficient cause and grounds for not filing the amended cause title in time and also for not filing restoration application within a reasonable time have been shown and apart from this, there is affidavit of advocate Shri Anand Purohit, therefore, in these circumstances, delay in filing the amended cause title as well as delay in filing the restoration application should be condoned and the restoration application should be allowed and all objections, which have been raised by the learned counsel for the respondents Nos. 4 and 5 should be rejected as interest of justice should not be defeated by rule of technicality. (Para 18)
(2). It arises in the following circumstances:
The deceased Balmukund filed a writ petition being S.B. Civil Writ Petition No. 4674/1989 against the respondents and when that writ petition was pending before this Court, the sole petitioner (deceased Balmukund) died on 22.3.1996 and thereafter, on 2.7.1996, an application under Order 22 Rule 4 CPC read with Section 151 CPC and Article 226 of the Constitution of India was filed by the present applicant-petitioner Om Prakash with the prayer that his name be substituted in place of deceased Balmukund as, according to Will executed by deceased Balmukund, he was his LR.
The said application dated 2.7.1996 was allowed by this Court vide order dated 12.7.1996 and it was further ordered that since in para 3 of the affidavit filed alongwith that application, the names of five persons were shown as LRs of deceased Balmukund, therefore, these five persons be also impleaded as LRs of the deceased Balmukund.
Thereafter, since amended cause title was not filed by the applicant petitioner, therefore, this Court passed a per-emptory order on 2.9.1996 stating that amended cause title be filed within a week, failing which, the writ petition shall stand dismissed without placing it before the court for orders.
Thereafter, in compliance of the order of this Court dated 2.9.1996, the Dy. Registrar (Judl.) passed order on 25.9.1996 by which the writ petition was dismissed as amended cause title was not filed in compliance of the directions of this Court dated 2.9.1996.
Thereafter, the present restoration application has been filed by applicant-petitioner Om Prakash on 29.6.2004 stating that due to inadvertence, amended cause title could not be filed. It was further submitted that when the order dated 25.9.1996 was passed by the Dy. Registrar (Judl.), the case was not shown in the cause list of Dy. Registrar (Judl.). It was further submitted by the applicant-petitioner that due to inadvertence and over-sight, compliance of filing amended cause title was not made and when legal representatives of deceased Balmukund contacted their counsel, the file was searched and necessary enquires were made and the fact that writ petition had been dismissed in default came to knowledge and in view of these facts, the present restoration application has been filed and it was prayed that the writ petition be restored to its original number and the bonafide mistake and delay for not filing the amended cause title be condoned. In support of the restoration application, affidavit of Shri Anand Purohit, Advocate has also been filed.
To that restoration application, a reply was filed by the respondents Nos. 4 and 5 on 29.7.2004 and in that reply, it was submitted that the present restoration application has been filed after lapse of 8 years for which there was no plausible explanation. It was further submitted that in para No. 5 of the restoration application, it was stated that legal representatives of deceased Balmukund contacted their counsel, but the present restoration application has been filed by one of the LRs of deceased Balmukund, namely, Om Prakash. Hence, averments made in the restoration application were vague and since there was a considerable delay in filing the restoration application, therefore, on that count, the same deserves to be dismissed.
Apart from this, it was further submitted by the respondents Nos. 4 and 5 that they had purchased the property long back in 1985/1988 after paying full consideration and the revision petition was filed by deceased Balmukund before the Board of Revenue, which was dismissed and aggrieved from that order, th
