High Court of Judicature For Rajasthan · 2025

Nathu Lal Son Of Shri Ramanand, Resident Of Ward No. 16, Srimadhopur, District Sikar (Raj.) (Expired On 30-11- 2018). ----Plaintiff/Respondent Sattu @ Satya Narain Son Of Shri Kana Ram, Rattu Son Of Shri Kana Ram, Raju Son Of Shri Kana Ram, Kishan Lal Son Of Shri Ganpat Ram, All are Resident Of Ward No. 16, Srimadhopur, District Sikar (At Present Residing At Bhatta Goruman, Tehsil Baba Bakala, Via Chimabatha, District Amritsar (Punjab). ----Defendants/Proforma Respondents For Petitioner(s) : Mr. Ajay Gupta For Respondent(s) : HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL 24/04/2025 Order For the reasons stated in the application no.1/2025 filed by the applicant seeking amendment/correction in the prayer clause of the miscellaneous application, the same is allowed. The amended application appended with the application no.1/2025 is taken on record. This miscellaneous application filed for setting aside the abatement, taking on record the legal representatives of deceased respondent no.1/plaintiff and for recalling the order dated

11.09.2023 is reported to be time barred by 1680 days and is accompanied with an application under Section 5 of the Limitation [2025:RJ-JP:17482] (2 of 5) [CMAP-118/2024] Act, 1963. In para no.3 of the applications, it is stated that the applicant is a labourer on a brickkiln and for last 7-8 years, he is living alongwith his family at Bhatinda. It is further stated in para no.4 that at the time of death of the respondent no.1, his entire family was inflicted with corona virus in the wake of Covid-19 pandemic and he was unaware of it. It is averred that his counsel was also unaware of his address in Punjab and since, the appellant did not have any mobile, he could not inform his counsel about the death of the respondent on.1. It is stated that when on

15.09.2023, he came to Jaipur and contacted the counsel, he came to know about death of the respondent no.1 whereupon, he went to Srimadhopur and after making enquiry about his legal heirs, the applications were filed. Reiterating the averments made in the applications, learned counsel for the applicant submits that delay in preferring the application for setting aside the abatement and for recalling the order dated 11.09.2023 is bona fide and, therefore, the delay be condoned. He also made similar averments for setting aside the abatement, for taking the legal representatives of deceased respondent no.1 on record and for recalling the order dated

11.09.2023. He, therefore, prays that the applications be allowed. Heard. Considered. The order of this Court dated 06.03.2019 in Civil Second Appeal No.267/2012 reads as under:- **izR;FkhZ ds fo}ku vf/koDrk us izdV fd;k fd izR;FkhZ la[;k 1 ukFkwyky dh e`R;q gks x;h gSA [2025:RJ-JP:17482] (3 of 5) [CMAP-118/2024] mDr rF; dks vfHkys[k ij fy;k tkrk gSA fo}ku vf/koDrk vihykFkhZ dks funsZf'kr fd;k tkrk gS fd izR;FkhZ la[;k&1 ukFkwyky dh e`R;q ds Øe esa vko';d dk;Zokgh@izkFkZuk i= izLrqr djsA i=koyh pkj lIrkg ckn lwphc) dh tkosA** Thereafter, till the second appeal was dismissed as abated by this Court vide order dated 11.09.2023, i.e., for a period of more than four years and six months, no step was taken by the appellant to bring on record the legal representatives of deceased respondent no.1. Indisputably, on account of not having brought the legal representatives of the deceased respondent no.1 on record within the stipulated period, who was the sole contesting respondent, the appeal stood abated. The question for consideration before this Court is as to whether the delay in filing the application is satisfactorily explained by appellant/applicant. Admittedly, the fact of death of the respondent no.1 was brought to notice of the appellant's learned counsel on 06.03.2019. There is not a whisper of averment in either of the applications, i.e., the application filed under Section 5 of the Limitation Act or, in the application filed under Order 22 Rules 4 and 9 read with Section 151 CPC for setting aside the abatement as to any step taken by the learned counsel for the appellant even after coming to know of the death of the respondent no.1. Although, there is a bald averment that the applicant alongwith his family was residing at Bhatinda (Punjab) [2025:RJ-JP:17482] (4 of 5) [CMAP-118/2024] for last 7-8 years; but, it is not supported by any documentary evidence. It is further averred that his counsel was unaware of the address in Punjab; but, it is not stated that the appellant was ever tried to be informed by his counsel at the address given in the memo of appeal in any manner. Moreover, in the application filed under Order 22 Rules 4 and 9 read with Section 151 CPC, in the affidavit filed in support thereof, in the application filed under Section 5 of the Limitation Act as also in the affidavit filed in support thereof, the same address of the appellant is reflected as given in the memo of second appeal. Therefore, this Court is not satisfied that the appellant was residing at Bhatinda in Punjab at the relevant time. Further, in para no.4 of the application filed under Section 5 of the Limitation Act as also the application filed under Order 22 Rules 4 and 9 read with Section 151 CPC, on the one hand, it is claimed that being resident of Bhatinda, he was unaware of the death of the respondent no.1; on the other hand, in the same breath, it is stated that since the appellant was not having any mobile, he could not inform his counsel about the death of the respondent no.1. Both the plea are mutually contradictory and self-destructive. In view of the aforesaid, it is apparent that the appellant/applicant has not been able to explain satisfactorily the inordinate delay in filing the application and has not come with bona fide plea before this Court seeking condonation of delay, setting aside the abatement and for recalling the order dated

11.09.2023. [2025:RJ-JP:17482] (5 of 5) [CMAP-118/2024] Resultantly, the application under Section 5 of the Limitation Act, 1963 as also the application filed under 22 Rules 4 and 9 read with Section 151 CPC are dismissed. PRAGATI/239 (MAHENDAR KUMAR GOYAL),J