- (1.) THE present appeal filed by the appellants -original defendants is directed against the order dated 27.1.04 passed by the Addl. District and Sessions Judge, Sambhar Lake, District Jaipur (hereinafter referred to as 'the appellate court'), whereby the appellate court had dismissed the Civil Regular Appeal being No. 14/98 for default and for want of prosecution, and also for non -service to the respondents. The appeal is also filed against the order dated 9.2.10 passed by the same court rejecting the application of the appellants filed under Order XLI Rule 19 of CPC, for re -admission of the appeal which was dismissed for default.
(2.) IT appears that a Civil Suit being No. 44/90 was filed by the respondent -plaintiff against the appellants -defendants seeking permanent injunction in respect of the land, as shown in the map annexed to the plaint, which suit was decreed by the Civil Judge (JD)& Judicial Magistrate, Sambhar Lake, Jaipur (hereinafter referred to as 'the trial court') as per the judgment and decree dated 24.8.98. Being aggrieved by the said judgment and decree the appellants had preferred Civil Regular Appeal being No. 14/98, which came to be dismissed for default as stated above on 27.1.04. The appellants thereafter filed the application under Order XLI Rule 19 of CPC on 12.8.04 seeking re -admission of the said appeal. The said application came to be dismissed by the appellate court vide the impugned order dated 9.2.10. It appears that the appellants instead of filing the Civil Misc. Appeal challenging the order dated 9.2.10 passed under Order XLI Rule 19 in view of the Order XLIII Rule 1(t) of CPC, filed the writ petition being NO. 3190/10. The respondent having appeared and raising objection about the maintainability of the writ petition, the learned Single Judge permitted the appellants -petitioners to convert the said writ petition into Civil Misc. Appeal directing the learned counsel for the appellants to complete the requirements necessary for converting the writ petition into Civil Misc. Appeal. Being aggrieved by the said order, the respondent had preferred the DB Special Appeal(W) No. 1319/13, whereby the Division Bench dismissed the said appeal vide the order dated 29.11.13, keeping open the rights available to the parties to address on the objections raised by the respondent. Accordingly the said writ petition was converted into the present Civil Misc. Appeal. The appellants have thereafter filed the application under Section 5 of the Limitation Act seeking condonation of delay occurred in filing the appeal.
(3.) IT has been submitted by the learned counsel for the appellants that the appellants were bonafide prosecuting the writ proceedings against the order dated 9.2.10, by which the appellate court had dismissed the application of the appellants filed under Order XLI Rule 19 of CPC, and therefore the appellants are entitled to the benefit of Section 14 of the Limitation Act. He also submitted that the appeal was dismissed by the appellate court on 27.1.04 for default and for want of prosecution as the concerned lawyer who was engaged by the appellants did not appear before the appellate court on the date fixed by the court. He also submitted that the appellants should not be made to suffer on account of the fault committed by the lawyer. Mr. Sharma has relied upon the decisions of the Apex Court in the case of Rafiq and Anr. Vs. Munshilal and Anr. AIR 1981 SC 1400, Goswami Krishna Murarilal Sharma Vs. Dhan Prakash and Ors. (1981) 4 SCC 574, Malkiat Singh and Anr. Vs. Joginder Singh and Ors. AIR 1998 SC 258, M.K. Prasad Vs. P. Arumugam AIR 2001 SC 2497, and on the decisions of this court in the case of Banwarilal and Smt. Gini Devi Vs. Mangilal Estate Pvt. Ltd. 1993(1) RLR, 139, Raj. State Industrial Development and Investment Corporation Ltd. Jodhpur Vs. M/s. Modi Thread Mills, Jodhpur 2003(3) WLC (Raj.) 44 and Om Prakash Vijay Vs. State of Rajasthan 2011 WLC (Raj.) UC 684, in support of his submissions.;