Lrs Of Late Shri Shivdutt Purohit vs Lrs Of Harkanwar (2025:Rj-Jd:11750) on 3 March, 2025

Date:

Rajasthan High Court – Jodhpur

Lrs Of Late Shri Shivdutt Purohit vs Lrs Of Harkanwar (2025:Rj-Jd:11750) on 3 March, 2025

Author: Rekha Borana

Bench: Rekha Borana

[2025:RJ-JD:11750]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
            S.B. Civil Misc. Appeal No. 2829/2024

 1. Lrs of Late Shri Somdutt Purohit, S/o Shri Ambadas Ji
 2/1. Smt. Pushpa W/o Shri Somdutt Ji, R/o Ambadas Bhawan,
 Sukhanand Ji Ki Bagechi, Inside Siwanchi Gate Road, New
 Chandpole Road, Jodhpur. (Death)
 2/2. Shri Chandrasekhar S/o Shri Somdutt Ji, R/o Ambadas
 Bhawan, Sukhanand Ji Ki Bagechi, Inside Siwanchi Gate Road,
 New Chandpole Road, Jodhpur, aged about 58 years.
 2/3. Shri Sunildutt S/o Late Shri Somdutt Ji, R/o Ambadas
 Bhawan, Sukhanand Ji Ki Bagechi, Inside Siwanchi Gate Road,
 New Chandpole Road, Jodhpur. (Death)
 2/4. Shri Anildutt S/o Shri Somdutt Ji, R/o Ambadas Bhawan,
 Sukhanand Ji Ki Bagechi, Inside Siwanchi Gate Road, New
 Chandpole Road, Jodhpur, aged about 52 years.
 2/5. Smt. Usha W/o Late Shri Satish Ji Vyas, D/o Shri Somdutt
 Ji, aged about 62 years, R/o Jai Narayan Vyas Colony,
 Chandpole, Jodhpur.
 2/6. Smt. Kiran W/o Shri Vinod Vyas, D/o Shri Somdutt Ji Vyas,
 aged about 60 years, R/o Nathawato Ki Wadi, Nawchokiya,
 Jodhpur.
 2/7. Smt. Sunita W/o Shri Rajesh Vyas, D/o Shri Somdutt Ji,
 aged about 52 years, R/o Old Housing Board, Pali.
 2/8. Smt. Deepa W/o Shri Mehesh Ji Vyas, D/o Shri Somdutt Ji,
 aged about 49 years, R/o Opposite Nileswar Mahadev Mandir,
 Chand Pole Chowk Road, Jainarayan Vyas Colony, Jodhpur.


                                                                 ----Appellants
                                    Versus

1.     Lrs Of Harkanwar, W/o Lt. Jai Lal Ji, R/o House No 6,
       Jaloriyo Ka Bass Jodhpur
1/1. Lrs Of Late Smt. Lakshmi Bohra W/o Jabarmal Ji Bohra,
       D/o Harkanwar , R/o Naiyo Ka Barr, Jodhpur.
1/1/1. Shri Nandu Bohra S/o Lt. Smt. Lakshmi W/o Jabardutt Ji
       Bohra, R/o Narayan Sadan, Peepaliya Bhrampuri, Jodhpur.
1/1/2. Smt. Saroj W/o Narendra Ji Awasthi, R/o Santhgharo Ka
       Bass, Bhrampuri, Jodhpur.
1/2. Kamalkant S/o Lt. Jailal Sharma, R/o Jalorio Ka Bass,
       Jodhpur.
1/3. Kamla Ojha D/o Lt. Jailal Sharma, R/o Jalorio Ka Bass,
       Jodhpur.
1/4. Shanta Ojha D/o Lt. Jailal Sharma, R/o Jalorio Ka Bass,
       Fatehsagar Ki Nehar, Jodhpur. (Since Deceased)
1/5. Smt. Indra W/o Pk Sharma, R/o Ratanada, Jodhpur.
1/6. Smt. Nirmala Bora W/o Rajendra Bora, R/o New
       Chandpole Road, Jodhpur.

                     (Downloaded on 14/03/2025 at 10:30:12 PM)
 [2025:RJ-JD:11750]                   (2 of 7)                    [CMA-2829/2024]


2.     Lrs Of Late Shri Gopikishan Purohit, S/o Virmichand Ji
2/1.   Sohanlal Purohit S/o Late Shri Gopikishan Ji, R/o
       Sukhanand Ji Ki Bagechi, Hardev Ji Ka Jhalra, New
       Chandpole Road, Jodhpur.
2/2. Smt. Urmila W/o Shri Gordhan Ji Bora, D/o Shri
       Gopikishan Ji
2/2/2. Smt. Shakuntla Purohit W/o Shri Prakashchand Ji Purohit,
       D/o Shri Gordhan Ji Bora And Smt. Urmila, R/o House No.
       89, Sukhanand Ji Ki Bagechi, Hardev Ji Ka Jhalra, New
       Chandpole Road, Jodhpur.
2/2/3. Smt. Manju Purohit W/o Shri Suryaprakash Purohit, D/o
       Shri Gordhan Ji Bora A,d Late Shri Urmila, R/o Chopasani
       Housing Board, Near First Puliya, Jodhpur.
2/2/4. Smt. Santosh Joshi W/o Mahesh Chandra Joshi, D/o Shri
       Gordhan Ji Bora And Late Shri Urmila, R/o House No. 12,
       Pal Byepass, Opposite Dps School, Eklavya Nagar,
       Jodhpur.
2/3. Lrs Of Late Smt. Mohan Kanwar Bissa W/o Late Shri
       Gopikishan, Jodhpur.
2/3/1. Ghanshyam Bissa S/o Shri Gopikishan Ji Bissa And Smt.
       Mohan Kanwar Bissa, R/o Sukhanand Ji Ki Bagechi, New
       Chandpole Road, Jodhpur.
2/3/2. Smt. Pramila W/o Shri Subhash Ji Gajja, D/o Shri Gopi
       Kishan Ji Bissa And Smt. Mohan Kanwar Bissa, R/o
       Opposite Dharmpura School, Near Ghanchiyo Ki Bagechi,
       Jodhpur.
2/3/3. Smt. Nilima Vyas W/o Rajendra Ji Vyas, D/o Shri Late
       Gopikishan Ji Vyas And Smt. Mohan Kanwar Bissa, R/o
       Near Ishakiya School, Jodhpur.
2/4. Smt. Laxmi Devi Kalla W/o Devraj Ji Kalla, D/o Late Shri
       Gopikishan Ji, R/o Bhajan Chowki, Pekko Ka Bass,
       Jodhpur.
3.     Lrs Of Late Shri Govind Kishan Purohit, S/o Ambadas Ji
3/1. Mohanlal S/o Late Shri Govind Kishan Purohit, R/o Near
       Sukhanand Ji Ki Bagechi, Chandpole, Siwanchi Gate Road,
       Jodhpur.
3/2. Vishnudutt S/o Late Shri Govind Kishan Purohit, R/o Near
       Sukhanand Ji Ki Bagechi, Chandpole, Siwanchi Gate Road,
       Jodhpur.
3/3. Prabhudutt S/o Late Shri Govind Kishan Purohit, R/o Near
       Sukhanand Ji Ki Bagechi, Chandpole, Siwanchi Gate Road,
       Jodhpur.
3/4. Sohan Kanwar W/o Shri Shivram Ji Kalla, D/o Late Shri
       Govind Kishan Ji Purohit, R/o Jalap Baori, Jodhpur.
3/5. Smt. Shobha W/o Shri Aatmaram Ji Ramdev, W/o Shri
       Govind Kishan Ji Purohit, R/o Mutho Ki Gali, Nawchokiya,
       Jodhpur.

         PERFORMA RESPONDENT
         Lrs Of Late Shri Shivdutt Purohit, S/o Shri Ambadas Ji,
4.       R/o Sukhanand Ji Ki Bagechi, Near Siwanchi Gate Road,
         Jodhpur.



                     (Downloaded on 14/03/2025 at 10:30:12 PM)
 [2025:RJ-JD:11750]                   (3 of 7)                    [CMA-2829/2024]


         Omprakash S/o Late Shivdutt Purohit, R/o Ambaram
4/1.     Bhawan, Sukhanand Ji Ki Bagechi, Siwanchi Gate Road,
         Jodhpur.
         Smt. Omkumari D/o Shri Shivdutt W/o Shri Gopalkrishna
4/2.     Ji,
         Smt. Prabha D/o Shri Shivdutt W/o Shri Shyamkishan Ji,
4/3.     R/o Ambaram Bhawan, Sukhanand Ji Ki Bagechi,
         Siwanchi Gate Road, Jodhpur.
                                                ----Respondents


For Appellant(s)          :     Mr. Chetan Prakash Soni
For Respondent(s)         :     Mr. Manoj Bhandari Sr. Adv Asst by
                                Mr. Shreyansh Bhandari



              HON'BLE MS. JUSTICE REKHA BORANA

Order

03/03/2025

1. An application under Order 22 Rule 3, CPC has been

preferred for substitution of legal representatives of the deceased

appellant No.2/3 (wrongly mentioned as appellant No.1/3 in the

application) who is reported to have expired on 20.11.2023.

2. In view of the submission made in the application, the same

is allowed. The legal representatives of deceased appellant

Sunildutt are permitted to be taken on record.

3. An application has been filed under Section 151, CPC for

transposition of appellant No.1 as performa respondent as

inadvertently, the cause title of present appeal was drafted as per

the application filed before the learned Trial Court whereas the

impugned order is being challenged by legal representatives of

Somdutt Purohit only.

4. In view of the submission made, the application is allowed.

Appellant No.1 is permitted to be transposed as Performa

Respondent (No.4).

(Downloaded on 14/03/2025 at 10:30:12 PM)
[2025:RJ-JD:11750] (4 of 7) [CMA-2829/2024]

5. Amended cause title as filed is taken on record.

6. Office to make online amendments.

7. The present miscellaneous appeal has been filed against the

order dated 17.10.2024 passed by the Additional District Judge

No.4, Jodhpur Metropolitan in Civil Misc. Application No.82/2024

whereby the application under Order 41 Rule 19 and Order 9 Rule

9 read with Section 151 of the Code of Civil Procedure as filed by

the applicant stood rejected.

8. The facts are that ‘no instructions’ were pleaded on

17.04.2023 by the counsel representing the appellants, before the

first appellate Court, in the first appeal in question. Prior to the

said date, the matter was posted for appropriate steps to be taken

qua deceased respondent Nos.2/3/1 and 3/5. However, no steps

qua the said deceased respondents were taken and ‘no

instructions’ were pleaded by the counsel. Therefore on

15.05.2023, the first appeal was dismissed in non-prosecution and

non-compliance.

9. Aggrieved of the order dated 15.05.2023, an application on

03.07.2023 was filed in terms of the aforementioned provisions on

behalf of the appellant-applicants for restoration of the said

appeal. Although the said application was filed on behalf of all the

applicants, but then the same was signed by one of the appellants

Sunildutt only and even the affidavit in support of the application

was signed and verified by him only.

10. However, Sunil Dutt i.e. the applicant expired on 20.11.2023

and despite time been sought and granted for appropriate steps to

be taken qua the said deceased applicant, no steps were taken

(Downloaded on 14/03/2025 at 10:30:12 PM)
[2025:RJ-JD:11750] (5 of 7) [CMA-2829/2024]

and hence, the learned Court proceeded on to reject the

application on the premise that the same had abated.

11. The learned Court observed that it was only because of no

further instructions been given by the applicants to the counsel

that he pleaded ‘no instructions’. The Court further observed that

the affidavit produced along with the application in question was

not even signed by the applicant Sunildutt.

12. Learned counsel for the appellant submits that the

observations as made by learned Appellate Court were mere

technical lacunas and the Court could have directed for curing the

same.

13. So far as ‘no instructions’ been pleaded by the counsel

before learned first appellate Court is concerned, counsel submits

that the notice of the counsel was received in the month of June

2023 and the present application was filed on 03.07.2023 which

could not have been termed to be highly delayed and hence,

ought to have been allowed.

14. Per contra learned Senior counsel appearing on behalf of the

respondents while supporting the order impugned submits that

the application even otherwise could not have been allowed as the

same was supported by an affidavit of Sunil Dutt only who

admittedly expired on 20.11.2023 and his legal representatives

were not brought on record. Therefore, the facts as stated in the

application cannot be termed to be verified in accordance with

law.

15. Heard learned counsel for the parties and perused the

material available on record.

(Downloaded on 14/03/2025 at 10:30:12 PM)
[2025:RJ-JD:11750] (6 of 7) [CMA-2829/2024]

16. The fact of the application in question having been filed

solely by Sunildutt and being supported by his affidavit only is not

denied.

17. In view of the said fact and in view of the fact that the legal

representatives of the said applicant Sunildutt were not brought

on record, the finding as recorded by the learned Appellate Court

to the extent of the application having abated, does not deserve

any interference being in consonance with law. However, the

finding as recorded by the learned Appellate Court to the effect

that ‘no instructions’ were rightly pleaded by the counsel is

concerned, it is not proved on record that prior to ‘no instructions’

been pleaded by the counsel on 17.04.2023, any notice was

served on the appellant.

18. In view of the above facts, although the order dated

17.10.2024 does not deserve any interference to the extent of the

application in question being suffering from several technical

lacunas, but then the same having been filed within a period of

two months of the dismissal of the appeal could not have been

termed to be delayed.

19. Further, the defect of the application not being supported by

affidavit of any other legal representative/appellant could have

been directed by the learned Court to be cured. The same ought

not to have been a ground to reject the application.

20. In view of the overall facts, the present appeal is

disposed of with a liberty to the appellant to move a fresh and

appropriate application for restoration of the appeal before the

learned Court within a period of three weeks from now. On the

(Downloaded on 14/03/2025 at 10:30:12 PM)
[2025:RJ-JD:11750] (7 of 7) [CMA-2829/2024]

said application being filed, the learned Appellate Court shall be

under an obligation to decide the same in accordance with law.

21. Stay petition and pending applications, if any, stand

disposed of.

(REKHA BORANA),J
139-Devanshi/-

(Downloaded on 14/03/2025 at 10:30:12 PM)

Powered by TCPDF (www.tcpdf.org)



Source link

LEAVE A REPLY

Please enter your comment!
Please enter your name here

Share post:

Subscribe

spot_imgspot_img

Popular

More like this
Related