MADAN, J. - (1.) THIS appeal (being directed against the impugned order dt. 19. 8. 1997 passed by Additional District Judge No. 1, Jaipur City in Misc. Case No. 23/89 declining grant of temporary injunction in favour of the plaintiff in his suit for specific performance of an agreement to sell), has come up before this Court for orders on the application dt. 4. 12. 2000 of the plaintiff appellant moved under Order 22 Rr. 4 & 9 r/w Sec. 151 CPC, which has been filed being time barred with 450 days delay from the date of expiry of the sole respondent Chauthmal who admittedly died on 23. 9. 1999 as per death certificate Ann. A.
(2.) FACTS in details are not stated as this order will dispose of only the applications of the parties. However, the facts in narrow compass are epitomised that the appellant plaintiff, a housing cooperative society is said to have entered into an agreement to buy an agricultural land of khatedar Chauthmal (respondent herein) situated in village Sukhalpura Teh. Sanganer of Khasra No. 9 measuring 20 bighas under an agreement dt. 4. 12. 1979 by paying a sum of Rs. 1100/- followed by another payment of Rs. 139075/- against sale consideration on 10. 8. 1980 with a remainder sale consideration of Rs. 123820/- payable at the time of registry. For specific performance of aforesaid agreement to sell the plaintiff society (appellant) instituted a suit in which a temporary injunction was sought by the society and counter claim was also filed for temporary injunction by defendant Chauthmal but, the trial Court after hearing both the parties declined to grant temporary injunction. Hence, this appeal. During the pendency of this misc. appeal, respondent- defendant Chauthmal died on 23. 9. 99 but his legal representatives were not brought on record within the prescribed limitation period of 90 days and application for bringing legal represen-tatives of Chauthmal has been filed after 450 days i. e. on 4. 12. 2000 under Order 22 Rule 4 & 9 CPC; in reply to which, Shri R. K. Agrawal, learned counsel appearing on behalf of Kailash one of legal representatives of defendant Chauthmal filed an applica-tion dt. 16. 1. 2001 praying therein for rejecting application of the plaintiff appellant and to treat the misc. appeal itself abated u/o. 22 Rr. 4 CPC. Factum of death of respondent Chauthmal on 23. 9. 1999 was not disputed but the facts stated in para 10 of appellant's application of having knowledge as to the pendency of appeal came on 6. 11. 2000 when Shri Saket Pareek, Advocate telephoned the society to make payment of his balance fee, were denied, and in reply to para 11 by not admitting in the manner stated it has been urged by Shri Agrawal that the appellant society admittedly had knowledge of the death of respondent Chauthmal as per the averments made in para 11, rather the appellant society having obtained ad-interim stay order of status quo had indulged in causing delay in service of the notices in this appeal alongwith the stay petition and in this view of the matter the delay in making the present application for bringing on record the legal representatives of respondent Chauthmal was not condonable. Application u/sec. 5 of the Limitation Act for condonation of delay of 450 days in moving the application under Order 22 Rr. 4 & 9 C. P. C. by the appellant was also filed on 4. 12. 2000 which was accompanied by affidavit of one Gopal Saini President of the society appellant and that of Saket Pareek Advocate, reply to which was also filed by Shri RK Agrawal on behalf of Kailash (L/r of Chauthmal ). During the course of arguments, Shri G. L. Pareek for the appellant (applicant) reiterating the averments made in the application for bringing the L/r of Chauthmal on record contended that since the appeal was filed by one Tulsiram son of Gangaram Saini the then Secretary of the Society became disinterested in the work of society handed over the documents and file of the litigations in the society's office and it was on 6. 11. 2000 when the appellant society came to know as to the pendency of the present misc. appeal upon telephone by Shri Saket Pareek to one Dharamchand Saini to make payment of his balance fees and at that time Dharamchand Saini informed as to the death of Chauthmal, inasmuch as the society had already brought L/rs of Chauthmal on record in suit proceedings before the trial Court in due time. Hence, as per Shri Pareek, the delay has occasioned on account of ignorance of having knowledge of pendency of this misc. appeal, in filing the present application for bringing L/rs of deceased Chauthmal. Shri G. L. Pareek placed reliance upon the decision of the Apex Court in OP Kathpalia vs. Lakhmir Singh (1) and UIT Jodhpur vs. Gokulnarain
(3.) CONTRARILY, Shri R. K. Agrawal while reiterating the contentions raised in reply to the application at hand contended that the story of belated knowledge as to the pendency of the appeal itself, and appellant's posing ignorance is not applicable to any prudent man legally advised specially when, in para 11 of the application it stands admitted fact that the appellant had knowledge of death of respondent long back when his L/rs were brought on record in suit proceedings before the trial Court. According to Shri Agrawal the story (supra) made by the appellant is totally fabricated under the garb of telephonic information reminding one Dharamchand Saini for payment of balance fees in appeal to the Advocate Shri Saket Pareek. He cited the decisions in Union of India vs. Ramcharan (3), Rangubai vs. Sunderbai (4) and Sankaran Pillai vs. V. P. Venuguduswami Having considered the rival contentions of the learned counsel for the parties, in my considered opinion the story posing ignorance as to the pendency of this appeal to anyone of the appellant Society is totally fabricated engineered and not sustainable in law in the facts & circumstances of the case. It is pertinent to mention herein that this appeal was filed alongwith the stay petition and affidavit in support thereof of one Shri Tulsiram son of Gangaram Saini and that apart the application for temporary injunction was moved by the appellant Society through Shri Dharamchand Saini who was said to be Secretary of the Society as is apparent from the title of Misc. Case No. 23/89 before the trial Court under the impugned order. Similarly, as is apparent from Vakalatnama, Gopal Saini describing himself as son of Gangaram Saini and President of appellant Society has signed the power in favour of Advocate Shri Saket Pareek to represent in the appeal. That apart in all the affidavits either in support of stay petition or the application under Order. 22 Rr. 4 & 9 CPC or the application u/sec. 5 of the Limitation Act, the deponents' father's name has been described as Gangaram Saini meaning thereby, President or the Secretary of the Society appellant are from one and the same family, even Tulsiram Saini in his affidavit in support of stay petition described himself as son of Gangaram Saini. If the averments in the applications are carefully scanned then, it stands certainly established that Shri Saket Pareek, Advocate is alleged to have telephoned on 6. 11. 2000 to Shri Dharamchand Saini to make payment of his balance fees and it was he (Dharamchand Saini) who informed about the death of Chauthmal (respondent) and as per the affidavit of Shri Pareek, he telephoned Dharamchand Saini who said that they have no knowledge about the pendency of appeal which means Dharamchand Saini had no knowledge. I am surprised as to who Shri Saket Pareek telephoned only to Shri Dharamchand Saini and not to Tulsiram Saini obviously because it was Dharamchand Saini under whose instructions as Secretary of the appellant Society as described in title of it application in the impugned order this appeal was filed before this Court. No affidavit has been filed of Dharamchand Saini or of Tulsiram Saini either to support the story or to state that Dharamchand Saini ceased to be Secretary of the Society nor any document of the Society has been filed for having elected new Secretaries one after the other during pendency of the appeal or after the suit. Hence, it cannot by any stretch of imagination be inferred that members of one family of Gangaram Saini or the office bearers including Shri Dharamchand Saini or Gopal Saini or Tulsiram Saini (who not only described themselves either as Secretary or the President but also stated in the affidavits as sons of Gangaram Saini, so also before the trial Court in suit proceedings) had no knowledge as to the pendency of the present appeal inasmuch as, there is clear admission wrung out from para 11 of the application that L/rs of deceased Chauthmal have been substituted in place of defendant (respondent) in suit proceedings before the trial Court. Thus, there are no cogent reasons to condone the delay of 450 days in moving the application for bringing the L/rs of deceased, that too on the assertions made and the story engineered by the present appellant Society. ;