SHAKUNTIA DEVI JAIN Vs. KANTA KUMARI

JUDGEMENT

(1.) This appeal has been referred to a Division banch because the litigation between the parties has been pending since 1919 and the controversy being only in connection with partition, it was considered to promote the cause of justice, to conclude it by the decision of a Division Bench in the very first instance.

(2.) The respondents have raised a prolimiary objection that the appeal is barred by time. The facts relevant for considering this objection may now be stated. The order appealed from was passed on 20th January, 1967 in execution proceedings relating to the execution of the partition decree and was made on the objection of Smt. Shakun tala Devi, appellant in this Court,. Her objections, needless to emphasise, were dismissed. The appeal was presented in this Court on 17th March, 1967 without a certified copy of the order sought to be appealed from. Along with the memorandum of appeal, an application was presented under Rule 2(b) of Chapter 1 A, Vol. V of the High Court Rules and orders and section 151 of the Code of Civil Procedure, in which it was expressly averred that the appellant had applied for a certified copy of the order dated 20th January, 1967 against which the appeal was directed. As the aopellant was seek ing urgent interim relief, she would be put to grave and irreparable injury in case she wilted to get a certified copy before approaching this Court. She furhter averred that she had filed a true copy of the impugned order mada after inspection of the records. It was in the circumstances prayed, to quote the exact words, "that the appellants appeal be entertained without the certified copy of the order. She will however, file the same as soon as it is ready and made available to her." At the bottom of this application, there is a note by the Counsel that the date when application for certified copy had been made was rot known to him. This application was dated 17th March, 1967. The appeal came up for hearing before the Motion Bench which admitted the appeal and granted the interim stay as prayed with notice. This order was made on 20th March, 1967. The appeal was placed before me sitting in Single Bench on 24th October, 1967, on that dat I oberved that on 28th July, 1967, I had been infromed by Shri Daijit Singh that Mahabir Prashad Jain, one of the respondents had died. Shri Yogeshwer Dyal. counsel for Shri Sumat Prashad Jain respondent No. 4 son of the deceased, offered to respresent other legal representatives of the deceased as well, Shri Daljit Singh the learned counsel for the appellant, however, said that an application for bringing on record the legal representatives of the deceased had acturlly been presented in this Court on 1st August, 1957, but, for certain reasons the office had not been able to place it for preliminary hearing before a Motion Judge, I, however, allowed the application and directed the case to be set down following day. On 25th Ocomber, 1967the respondents raised an objection to the effect that the appellant had not produced in this Court a certified-copy of the order challenged on appeal. The learned counsel for the appellant wanted time for substantiating that an application for a certified copy had actually been made as represented in tbi application dated 17th March, 1967 and for showing that the same had not been produced in Court, for reasons justifying condonation of delay. The case was accordingly adjourned for one week on payment of costs. Later, it was referred to a larger Bench as already noticed. Both sides have filed affidavits in support of their various contentions and what seems to be almost indisputable may now be stated. On 16th February, 1967, an application was presented by the appellant through her husband Shri Ajit Pershad Jain for certified copies of the following three documents :-

(3.) Now, after the present objection was raised by the respondents and the case was adjourned, the appellant filed an application in this Court under Section 5. Limitation Act. This application does not bear any date but the court-fee stamps bear the date 25th October, 1967. In this application, it was stated that the appellant, a pardanashin lady depended on her son, who had applied for a certified copy of the impugned order, on 2nd March, 1967. She, however, actually swore the affidavit before an Oath Commissioner in the High Court on 3rd November, 1967 and was identified by her counsel. This fact is of some importance because in her rejoinder dated 20th December, 1967, she had denied in paragraph 3 that she attends courts and offices, though care has been taken to have this rejoinder supported not by the appellant's affidavit but by that of her husband Shri Ajit Pershad Jain, who purports to have filed the rejoinder on her behalf. In this application it is stated in paragraph 9 that the copy applied for on 2nd March, 1967 had been duly delivered but the same was misplaced by the appellant's Son Virendra Kumar. It is however, intresting to note that her son Virendra Kumar in his affidavit affirmed on 3rd November, 1967 excluded this fact from those which he affirmed to bs true to his knowledge, It would not be out of place at this stage to point out that in his affidavit dated 1st August, 1967 'filed in this Court in support of the appellant's application under Order 22 Rule 4, Code of Civil Procedure. Shri Ajit Pershad Jain husband ofhe appellant had solemnly affirmed that he was the appellant's pairokar in the case and was looking after her interest in this litigation. The foregoing narration of facts brings oat at least the fact that the appellant and her husband have no scruple in making incorrect statement on oath and they have little regard for truth.