BALMUKUND ARORA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This restoration application has been filed by the petitioner-applicant Om Prakash, who is son of Ram Chandra, in capacity as LR of deceased Balmukund on 29-6-2004 with the prayer the writ petition being No. 4674/1989, which was dismissed vide order dated 25-9-1996 in compliance of the order of this Court dated 2-9- 1996, be restored to its original number.

(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 along with that application, the names of five persons were shown as LRs of deceased Balmukund, therefore, these five persons be also im- pleaded 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. Regis- trar (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 Balmukhand contacted their counsel, the file was searched and necessary enquiries 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 bona fide 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 ap- plication, 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 1985/1,988 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, the writ petition was filed before this Court and the same was dismissed on 13-9-1988 and therefore, a valuable right had accrued in favour of the respondents Nos. 4 and 5. Hence, it was prayed that the present restoration application be dismissed. Thereafter, on 6-8-2004, an application under Section 5 of the Limitation Act was filed on behalf of the applicant-petitioner Om Prakash with the prayer that the delay in filing restoration application was bona fide one and therefore, the same may be condoned. It may be stated here that amended cause title was filed by the learned counsel for the applicant-petitioner Om Prakash on 6-8- 2004. It may further be stated here that since in the amended cause title, which was filed on 6-8-2004, rest LRs of deceased Balmukund have not been made party, therefore, on 18-8-2004, a fresh application was filed on behalf of the applicant petitioner Om Prakash with the prayer that he may be allowed to implead rest LRs of deceased Balmukund as proforma respondents and simultaneously, amended cause title to that effect was also filed. The said application dated 18-8-2004 by which other LRs of deceased Balmukund were sought to be impleaded as proforma respondents, was contested by the respondents Nos. 4 and 5 by filing separate reply stating that since they were to be made as LRs of deceased Balmukund, therefore, compliance of order of this Court dated 12-7- 1996 was not made. Hence, it was prayed that the said application be dismissed. Thereafter, on 23-8-2004, a fresh application was filed on behalf of the applicant- petitioner Om Prakasb that rest LRs of deceased Balmukund may also be substituted and since no power of Vakalatnama was given by them to the present counsel, rest LRs of deceased Balmukund may be permitted to be arrayed as proforma respondents.

(3.) I have heard the learned counsel for the applicant-petitioner and the learned counsel for the respondents Nos. 4 and 5 and gone through the entire materials available on record.