HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No. 429/2019

1.

Kamal Singh S/o Sh. Indrajeet Singh (Deceased),

Resident Of Near Railway Crossing, Mal Godown Road,

Bharatpur (Rajasthan)

1/1.

Vidhya W/o Late Sh. Kamal Singh, Aged About 65 Years,

Resident Of Near Railway Crossing, Mal Godown Road,

Bharatpur (Rajasthan)

1/2.

Niranjan Singh S/o Late Sh. Kamal Singh, Aged About 50

Years, Resident Of Near Railway Crossing, Mal Godown

Road, Bharatpur (Rajasthan)

1/3.

Vinod Kumar S/o Late Sh. Kamal Singh, Aged About 33

Years, Resident Of Near Railway Crossing, Mal Godown

Road, Bharatpur (Rajasthan)

1/4.

Raju @ Rajendra S/o Late Sh. Kamal Singh, Aged About

30 Years, Resident Of Near Railway Crossing, Mal Godown

Road, Bharatpur (Rajasthan)

1/5.

Vimla Devi D/o Late Sh. Kamal Singh, Aged About 58

Years, Resident Of Near Railway Crossing, Mal Godown

Road, Bharatpur (Rajasthan)

1/6.

Mahendri D/o Late Sh. Kamal Singh, Aged About 45

Years, Resident Of Near Railway Crossing, Mal Godown

Road, Bharatpur (Rajasthan)

1/7.

Sheela D/o Late Sh. Kamal Singh, Aged About 35 Years,

Resident Of Near Railway Crossing, Mal Godown Road,

Bharatpur (Rajasthan)

1/8.

Kaloda Devi D/o Late Sh. Kamal Singh, Aged About 28

Years, Resident Of Near Railway Crossing, Mal Godown

Road, Bharatpur (Rajasthan)

----Appellants

Versus

Madan Lal S/o Kanheiya, R/o B-Narayan Gate, Bharatpur

Presently R/o Dhemar Mohalla, Bayana Gate Wair, District

Bharatpur

----Respondent

(2 of 3)

[CSA-429/2019]

For Appellant(s)

:

Mr. Chandra Shekhar

For Respondent(s)

:

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

06/07/2022

Appellants-plaintiffs have preferred this second appeal under

Section 100 of Civil Procedure Code, assailing the order dated

22.05.2019 passed by Additional District Judge No.1, Bharatpur in

Civil Misc. Appeal No.49/2018, affirming the order dated

27.08.2018 passed by Civil Judge, Bharatpur dismissing the

application under Order 9 Rule 9 CPC.

It appears from record that appellant-plaintiff instituted a

civil suit along with an application for temporary injunction. After

decision of temporary injunction application vide order date

28.02.2008, plaintiff or his counsel did not pursue the suit, hence,

the same was dismissed in default vide order dated 07.03.2008.

Thereafter, on 18.05.2017, plaintiff moved an application under

Order 9 Rule 9 CPC to restore his civil suit. An explanation for

delay was assigned that plaintiff fell ill and his Advocate informed

plaintiff that his suit has been decided. The trial Court in absence

of any evidence regarding sickness of plaintiff and other material

on record did not found assigned cause as sufficient to condone

the delay of 9 years and application was treated as abated.

Accordingly, the application was dismissed vide order dated

27.08.2018. Plaintiff assailed the order by filing civil misc. appeal

under Order 43 Rule 1(c) CPC. The misc. appeal was heard and

dismissed on merits vide order dated 22.05.2019 with findings

that plaintiff could not assign sufficient cause to explain the delay

(3 of 3)

[CSA-429/2019]

of nine years and the trial Court has committed no error in

dismissing the application. Against orders dated 22.05.2019 and

27.08.2018, the instant second appeal has been filed.

Firstly, this Court finds that both Courts have examined the

reason on merits assigned by appellant-plaintiff and concurrently

observed that reason cannot be treated as sufficient to condone

the delay of nine years. Secondly, the order passed on the

application under Order 9 Rule 9 CPC do not have trappings of the

decree, hence, second appeal under Section 100 of CPC is not

maintainable.

In view of discussion made hereinabove, the second appeal

is dismissed.

(SUDESH BANSAL),J

NITIN /10