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.
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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.
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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).
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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
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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.
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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
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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/-
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