Rajasthan High Court – Jodhpur
Shyam vs Ugamraj Sand (2025:Rj-Jd:5797) on 29 January, 2025
[2025:RJ-JD:5797]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7038/2024
Shyam S/o Late Shri Mangi Lal Mandora, Aged About 65 Years,
By Caste Soni, Resident Of 16, Pani Darwaza, Pali, Rajasthan.
----Petitioner
Versus
1. Ugamraj Sand S/o Shri Kewalchand Ji Sand, Aged About
60 Years, By Caste Jain, R/o Bhatwada, Near Somnath
Temple, Pali, Rajasthan.
2. LRs Of Late Shri Jagdish Chandra S/o Late Shri Mangilal,
2/1 Rajesh S/o Late Shri Jagdish Chandra Mandora, By Caste
Soni, R/o 38, Bikaneriya Bas, Pali, Rajasthan.
2/2 Ashok Kumar S/o Late Shri Jagdish Chandra Mandora, By
Caste Soni, R/o 38, Bikaneriya Bas, Pali, Rajasthan.
2/3 Vimla D/o Late Shri Jagdish Chandra Mandora, By Caste
Soni, R/o 38, Bikaneriya Bas, Pali, Rajasthan.
2/4 Sheela D/o Late Shri Jagdish Chandra Mandora, W/o
Radheshyam Soni, Resident Of 3-B-11, Chopasni Housing
Board, Near 1st Puliya, Jodhpur.
3. LRs Of Late Shri Badrilal S/o Late Shri Mangilal Ji
Mandora, Through -
3/1 Shanti Lal S/o Late Shri Badri Lal, By Caste Soni, R/o
Bikaneriya Bas, Pali, Rajasthan.
3/2 Kamlesh D/o Late Shri Badri Lal, By Caste Soni, R/o
Bikaneriya Bas, Pali, Rajasthan.
3/3 Veena D/o Late Shri Badri Lal, By Caste Soni, R/o
Bikaneriya Bas, Pali, Rajasthan.
4. Lakshminarayan S/o Late Shri Mangilal Mandora, By
Caste Soni, R/o Gujrati Katla, Pali, Rajasthan.
5. Shankar Lal S/o Late Shri Mangilal Mandora, By Caste
Soni, R/o Bikaneriya Bas, Pali, Rajasthan.
6. Devkishan S/o Late Shri Mangilal Mandora, By Caste Soni,
R/o Gujrati Katla, Pali, Rajasthan.
7. Smt. Urmila Devi W/o Late Shri Sajjan Lal Ji, D/o Late
Shri Mangilal Ji Mandora, By Caste Soni, R/o Gujrati
Katla, Pali, Rajasthan.
8. Kalpesh S/o Late Shri Sajjan Lal Ji Mandora, By Caste
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Soni, R/o Gujrati Katla, Pali, Rajasthan.
9. Miss Priti D/o Late Shri Sajjan Lal Ji Mandora, By Caste
Soni, R/o Gujrati Katla, Pali, Rajasthan.
10. LRs Of Late Shri Kantilal S/o Late Shri Mangilal Ji Mandora
10/1 Rekha Devi W/o Late Shri Kantilal, By Caste Soni, R/o
Gujrati Katla, Pali, Rajasthan.
10/2 Jayesh @ Chintu S/o Late Shri Kantilal, By Caste Soni,
R/o Gujrati Katla, Pali, Rajasthan.
10/3 Prateek @ Pintu S/o Late Shri Kantilal, By Caste Soni, R/o
Gujrati Katla, Pali, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Sunil Purohit
For Respondent(s) : Mr. Himanshu Bumb along with Mr.
Rishabh Tayal
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
29/01/2025
1. The present writ petition has been directed against the
common order dated 12.03.2024 passed by the learned
Commercial Court No.2, Jodhpur in Civil Misc. Case No.32/2023
(N.C.V. No.03/2023), whereunder two applications preferred by
the respondent-plaintiff under Order 9 Rule 4 read with 51 of CPC,
were allowed.
2. The first application was filed to restore the original suit,
which was dismissed in default for non-prosecution on
10.07.2018. The said application was filed by the plaintiff after
two days of dismissal of the original suit and such application
was also dismissed on 01.10.2021 for want of prosecution. The
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plaintiff filed the second application on 03.01.2023 to restore the
first application. Though the provision of law mentioned in both
applications as under Order 9 Rule 4 read with 151 C.P.C., the first
application must be under Order 9 Rule 9 and the second
application must be under Section 151 of C.P.C.
3. The plaintiff filed the original suit for specific performance
in the year 2008. The suit was dismissed for default on
10.07.2018 at the stage of framing of issues. The plaintiff filed the
first application to restore the said suit though quoted provision
under Order 9 Rule 4 read with 151 C.P.C. The application should
be treated as an application filed under Order 9 Rule 9 of C.P.C.
The said application was also dismissed in default. The second
application is filed to restore the first application and the provision
quoted was Order 9 Rule 4 of C.P.C. read with 151 of C.P.C. In
fact, such application should be under Section 151 of C.P.C. only.
4. The court below after hearing the parties allowed the said
two applications by the impugned common order and
consequently, the suit was restored.
5. In the above factual matrix, the learned counsel for the
writ-petitioner/defendant has submitted that the court below
should not have allowed two applications by a common order and
he ought to have allowed the second application then, decided the
first application.
6. The second contention of the learned counsel for the writ-
petitioner/defendant is that the second application should have
been filed within 30 days in terms of Article 122 of Limitation Act
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but the second application was filed after more than 1 year 5
months. The said second application should have been
accompanied by the application under Section 5 of the Limitation
Act, which is not done. Therefore, the order impugned requires to
be set aside.
7. Per contra, the learned counsel appearing for the
respondent/plaintiff has submitted that the learned trial judge
heard two applications together and passed the orders satisfying
the reasons given by the plaintiff for non-appearance on the dates
of dismissal of the suit and the first application. According to him,
there is no illegality in passing such order.
8. The learned counsel for the respondent/plaintiff further
submitted that the Article 122 of the Limitation Act would apply
only to the applications filed to restore the suit, appeal, review or
revision and such Article would not apply to any other misc.
applications like the second application. According to him, in the
present case, the appropriate Article for second application is 137
of Limitation Act. Learned counsel has placed reliance on the
decision rendered by the High Court of Telengana in the case of K.
Sudhakar Reddy Vs. Ind. Bank Housing Limited, reported in
2007(6) ALD 476.
9. I have considered the rival submissions advanced by
learned counsels and carefully perused the impugned order as well
as the material available on record.
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10. In the backdrop of the above arguments, it is relevant to
refer to the Articles 122 and 137 of Limitation Act, which reads
hereunder:-
Article Description of suit Period of Time from which
limitation period begins to
run
122 To restore a suit or Thirty days. The date of
appeal or dismissal.
application for review or
revision dismissed for
default
of appearance or for
want of
prosecution or for failure
to
pay costs of service of
process
or to furnish security for
costs.
137 Any other application for Three years. When the right
which to apply accrues.
no period of limitation is
provided elsewhere in
this
Division.
11. From a close reading of Article 122 of the Limitation Act,
it is clear that the said Article would apply to the applications,
which are filed to restore a suit or appeal and also applications for
review or revision. The limitation prescribed under Article 122 of
Limitation Act is 30 days. There is no doubt that the first
application is governed by the Article 122 of the Limitation Act and
it is also not in dispute that the first application was filed within 30
days.
12. From a close reading of Article 137 of the Limitation Act, it
is crystal clear that it is a residuary Article, which deals with the
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applications which are not covered from the Articles 118 to 136 of
the Limitation Act.
13. Admittedly, the second application cannot be said to be an
application to restore a suit or an appeal and it was the application
to restore the first application. The first application was filed to
restore the suit, which was dismissed in default. It is also not in
dispute that the second application is falling under any of the
provisions under Articles 118 to 136 of the Limitation Act.
Naturally, it must fall under the residuary Article i.e. 137 of
14. The argument of learned counsel for the writ-petitioner/
defendant is that when the limitation was 30 days for the first
application, for filing of the second application, the limitation,
which is contemplated for filing the first application, shall be the
same. This argument is misconceived. In the legislation in its
wisdom prescribed the various kinds of applications, which are
covered from Article 118 to 137 of the Limitation Act. The
defendant cannot contend that 30 days limitation, which is
prescribed under Section 122 of the Limitation Act, would also
apply to the second application. The appropriate Article is 137 of
the Limitation Act, which prescribes 3 years limitation and in fact,
the second application was filed within the said period. Therefore,
the requirement of filing application under Section 5 of the
Limitation Act is unwarranted.
15. The contention as canvassed by the learned counsel for
the plaintiff get support from the decision of High Court of
Telengana rendered in the case of K. Sudhakar Reddy (cited
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supra). I am also in complete agreement with the said decision of
the Telengana High Court.
16. The argument of learned counsel for the writ
petitioner/defendant that the Trial Court should not have decided
both the applications together is also misconceived. When the
applications were heard together, a common order was rightly
passed. There is no irregularity in such proceedings.
17. There is no serious contest on the merits of the orders
allowing the applications. The court below found the explanation
offered for the absence on the date of dismissal of the suit as well
as the first application to be well explained and satisfied. Such a
discretion exercised by the court below cannot be interfered in the
writ jurisdiction. Therefore, the writ petition is devoid of merits
and is liable to be dismissed.
18. In the result, the writ petition is dismissed.
19. No order as to costs.
(MUNNURI LAXMAN),J
220 NK/PoonamS/-
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