CHHAGAN LAL Vs. BHAWANI SAHAI & ORS

JUDGEMENT

(1.) This civil misc. appeal has been filed against the order dated 24.07.2012, passed by the Additional District and Sessions Judge, Sambhar Lake, District Jaipur dismissing an application under Section 5 of the Limitation Act and consequently also an accompanying application under Order 41 Rule 19 CPC read with Section 151 CPC for restoring the appeal dismissed in default vide order dated 19.02.2009 passed by the learned ADJ, Sambhar Lake (against the judgment and decree dated 15.03.2005, passed by the Additional District & Sessions Judge, Sambhar Lake, District Jaipur in a suit for partition).

(2.) The background facts of the case are that the plaintiff-respondent No.1, Bhawani Sahai (hereinafter 'the plaintiff'), filed a suit for partition before the learned Civil Judge (Sr. Div.) & Additional Chief Judicial Magistrate, Sambhar Lake, District Jaipur stating that he was entitled to a portion of house situate in ward No.1 in the town of Phulera, being the ancestral property constructed by his father. The dimension of the house in issue was detailed in the plaint as was the family tree. It was averred that during the lifetime of his late father Roopa Ram on 21.05.1986, a family statement was entered into. Part of the house as detailed in the plaint came to be his share. The plaintiff's father died on 02.11.1993 and thereafter he continued to live in the said house. It was stated that when the plaintiff however sought the formal possession of the portion falling to his share as per the family settlement, the appellant-defendant, Chhagan Lal (hereinafter 'the defendant') first delayed the matter and finally refused to abide by the family settlement. It was stated that in spite of various attempts to find an solution amicably and take possession of his portion as per the family settlement dated 21.05.1986, all efforts towards that end had been of no avail and in fact the defendant, Chhagan Lal started to raise construction over the house and in contravention of the family settlement. In the facts averred, a formal partition by metes and bounds as per the family settlement dated 21.05.1986 was sought as also the possession thereof. Expectedly, on service of the plaint filed by the plaintiff, written statement of denial was filed by the defendant. Respondent Nos.2 & 3, Magan Lal and Ghasi Ram, the other defendants in the suit, respectively, however in their written statements supported the case of the plaintiff and admitted to the family settlement entered between the brothers during the lifetime of their father on 21.05.1986 and the obligation to adhere thereto as prayed by the plaintiff. The learned court below vide its judgment dated 15.03.2005 decreed the suit in favour of the plaintiff and declared his ownership of the portion of the disputed house detailed in the suit and marked as A, F & AG. It was directed by the court below that the plaintiff be put in possession of the said portion of the house in dispute. Aggrieved by the judgment and decree dated 15.03.2005, the defendant-appellant filed an appeal before the learned Additional District and Sessions Judge, Sambhar Lake, District Jaipur. The said appeal remained pending for about four years. Having been adjourned from time to time, the matter was fixed for final arguments on 19.02.2009. On the said date, the defendant Chhagan Lal did not appear before the appellate court below consequent to which the appeal was dismissed in default under the provisions of Order 41 Rule 17 CPC.

(3.) An application thereafter came to be filed by the defendant Chhagan Lal before the Additional District and Sessions Judge, Sambhar Lake under Order 41 Rule 19 CPC read with Section 151 CPC praying that the appeal dismissed in default be restored to its original number. The said appeal was accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay of over three years as the said application had not been filed within 30 days of the dismissal of the appeal in default as warranted in law.