SHIBBU Vs. BAHADUR SINGH

JUDGEMENT

(1.) THIS appeal has been preferred by defendant Shibbu together with his brother Ramdayal, who was not party in the suit. Shibbu was originally impleaded as defendant in the suit filed by plaintiff -respondent Bahadur Singh. Bahadur Singh filed a suit for specific performance before the Additional District Judge (Fast Track) No. 3, Dholpur on the basis of agreement to sale dt. 29.12.2001 executed by Shibbu in favour of the plaintiff with respect to the land bearing Khasra No. 1475 measuring 1 bigha & 15 biswa, Khasra No. 1476 measuring 1 bigha & 15 biswa & Khasra No. 1479 measuring 2 bigha & 8 biswa. The trial Court issued notices of the suit. Defendant -appellant appeared in response to the notice and engaged Shri Malkhan Singh Tyagi, Advocate on his behalf, who did not choose to file written -statement. Therefore his right to file written -statement was closed and the suit was decreed vide judgment & decree dt. 10/02/2004. In the meantime, defendant -Shibbu executed a release -deed in favour of his brother Ramdayal, who is also one of the appellant before this Court and Ramdayal has filed an application seeking leave of the Court to file appeal under Sec. 96 CPC as co -appellant. This appeal against the judgment & decree dt. 10/02/2004 has been filed belatedly on 01/07/2009 with huge delay of 1877 days. In the appeal as well as in the application seeking condonation of delay, appellant has set up a plea that plaintiff had impersonating himself as Shibbu, engaged Shri Malkhan Singh Tyagi, Advocate. After the suit was ordered to proceed ex -parte, an application was filed on behalf of Shibbu under Order 9 Rule 7 CPC before the trial Court on 03/01/2004 for setting aside the ex -parte proceedings drawn on 16/12/2003. On the day of filing of the aforesaid application itself on 03/01/2004, the ex -parte proceedings drawn on 16/12/2003 were set -aside.

(2.) THIS Court issued notices of both the applications i.e. application filed under Sec. 5 of the Limitation Act as well as application under Sec. 96 CPC seeking leave of the Court to file appeal on behalf of Ramdayal as well. Learned counsel for the plaintiff -respondent have put appearance and contested the matter by filing reply to both the applications.

(3.) HE was required to file further affidavit. This Court also directed appellant -Shibbu to remain present before this Court on 22/02/2013 for obtaining his fresh thumb mark so that his thumb impression appended on vakalatnama filed on his behalf by Shri Malkhan Singh Tyagi, Advocate before the trial Court may be sent to the forensic science laboratory for the purpose of comparison. Appellant -Shibbu appeared before the Court on 04/04/2013. Deputy Registrar (Judicial) of this Court was directed to obtain the thumb impression/mark of appellant -Shibbu in presence of counsel for both the parties. After obtaining the thumb impression/mark of Shibbu, same were sent to the FSL for comparison thereof with the vakalatnama filed by Shri Malkhan Singh Tyagi, Advocate before the trial Court. The expert report of the FSL has been received, who has opined, as under: - -