1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL SECOND APPEAL NO.200/2008 LRs of Basti Ram versus LRs of Bahadur Mal Date of Judgment :: 22.5.2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.Manish Patel, for the appellant/s.
Mr.O.P.Boob, for the respondent/s.
---- BY THE COURT: This second appeal under Section 100 CPC is directed against the judgment and decree dated 1.8.2005 passed by the Additional District and Sessions Judge No.3, Jodhpur, whereby the judgment and decree dated 10.5.2001 passed by the Additional Civil Judge (Jr.Div.) No.5, Jodhpur has been upheld.
The facts in brief may be noticed thus : the appellant filed a suit for recovery of gold articles or their value in a sum of Rs.12,350/- with the averments that the plaintiff Basti Ram and defendant Bahadurmal were residents of Dhundhada and were involved in business.
The defendant had admitted in his notice dated 15.2.1965 regarding the mortgage of the said articles which weigh about 6 Tola on 27.8.1964 and a sum of Rs.600/- was lent; the said articles were still with the defendant, which 2 have not been returned, no proceedings for foreclosure have been initiated by the defendant, when on 26.1.1981, the plaintiff requested the defendant to redeem the said articles, he avoided the same and therefore, notice by way of telegram dated 31.1.1981 was got issued.
Ultimately, the relief as noticed here- in-before was prayed for in the plaint.
It appears that initially a written statement was filed by Bahadurmal, wherein he denied all the averments made in the plaint.
However, after his death, his legal representatives were taken on record and they filed another written statement and besides reiterating the plea as raised by their father, it was contended that the articles which were mortgaged with the defendant for a sum of Rs.600/- were returned back on 24.4.1968 and a receipt in this regard was executed by the plaintiff and therefore, the said articles were not in possession of the defendant and consequently, the plea regarding request made on 26.1.1981 as notice dated 31.1.1981 was baseless and incorrect.
Certain other pleas were also raised in the additional reply.
Ultimately, it was prayed that the suit be dismissed.
The trial court framed as many as eight issues.
On behalf of the plaintiff 4 witnesses were examined and on behalf of the defendant 2 witnesses were examined.
After hearing the parties, the trial court came to the conclusion that the transaction of mortgage of the articles for a sum of Rs.600/- did take place between the parties; the plaintiff failed to prove that the articles were not returned back and the 3 defendant proved that the articles were returned back; the plaintiff was not entitled for return of the articles or a sum of Rs.12,350/- as they have already been returned, the issues framed based on the plea raised by the defendants were not pressed and ultimately, the suit was dismissed.
The appellants filed fiRs.appeal, which was barred by limitation.
Alongwith the appeal, an application under Section 5 of the Limitation Act was filed.
However, after hearing the parties, the fiRs.appellate court found that the averments made in the application were baseless and rejected the application filed under Section 5 of the Limitation Act.
Despite rejecting the application seeking condonation of delay, the fiRs.appellate court examined the issue raised, on merits and found no substance and consequently, dismissed the appeal.
It is submitted by learned counsel for the appellants that the fiRs.appellate court was not justified in dismissing the application under Section 5 of the Limitation Act as the appeal was barred by about 40 days only.
It was further submitted that the defendant Basti Ram had taken a specific plea in his written statement wherein he has denied the entire transaction itself, after the legal representatives came on record, they filed an application under Order VI, Rule 17 CPC seeking to take the plea about return of articles, which application was rejected by the trial court.
However, by filing the written statement, the legal representatives took plea which was not in consonance with the plea taken up by the original defendant and such a plea could 4 not have been examined by the trial court.
It was prayed that as the action of the respondents in taking a plea contrary to the plea taken by the original defendant could not have been examined by the trial court, the judgment and decree passed by the trial court stood vitiated.
Per contra, learned counsel for the respondents submitted that no such plea was raised before the trial court and the trial court after trying the suit based on the written statement filed by the legal representatives, has reached a finding of fact which does not call for any interference.
It was further submitted that the appellate court has rightly rejected the application under Section 5 of the Limitation Act and the said order also does not call for any interference.
I have considered the rival submissions made by learned counsel for the parties and perused the judgment passed by both the courts below.
From the submissions and the record, it appears that after the application filed by the legal representatives seeking amendment in the written statement filed by their father was rejected, they filed written statement and took the plea regarding return of the articles mortgaged and the fact that a receipt in this regard was executed by the plaintiff way-back in the year 1968.
It also appears that no objection in terms of provisions of Order XXII, Rule 4(2) CPC regarding the defence being not appropriate to the character as legal representatives of the deceased defendant, was raised.
The trial court framed 5 additional issue No.8 on the plea raised in the written statement by the legal representatives, the parties led evidence and the receipt was exhibited as Ex.-A/1.
The parties were cross- examined on the said document and the trial court, after thoroughly analyzing the oral and documentary evidence, held that the receipt Ex.-A/1 was proved and consequently dismissed the suit.
The fact that the plaintiff-appellant chose not to oppose the nature of written statement filed by the legal representatives and participated in the trial based on the said written statement, the plea questioning the nature of the written statement at the appellate stage is not maintainable and the fiRs.appellate court was, therefore, justified on merits in coming to the conclusion that the appeal had no substance.
In view of the fact that the appellant even on merits does not have any case, the issue raised about validity of rejection of the application under Section 5 of the Limitation Act by the fiRs.appellate court goes into oblivion.
In view of the above discussion, there is no substance in the second appeal and the same is, therefore, dismissed.
(ARUN BHANSALI).J.
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