Vineet Kothari, J. - (1.) THIS present first appeal is arising out of the judgment and decree dated 13.07.2004 passed by the learned Additional District Judge (Fast Track) No. 2, Bhilwara in Civil Original Suit No. 302/2003 "Sitaro Devi vs. Mohammed Saleem & Ors." who dismissed the suit filed by the present appellant -plaintiff seeking 20 cancellation of agreement, declaration and injunction. The appellant -plaintiff Smt. Sitaro Devi wife of late Shri Raghunandan Prasad Jain has filed the present first appeal under Section 96 of the Code of Civil Procedure against the respondents -defendants Mohammed Saleem son of Shri Kamruddin Mqmin being aggrieved by the judgment of the learned Trial Court of 25 Additional District Judge (Fast Track) No. 2, Bhilwara dismissing the Civil Original Suit No. 302/2003 "Sitaro Devi vs. Mohammed Saleem & Ors." on 13.07.2004, as the plaintiff failed to lead any evidence in her favour. The suit aforesaid was filed for declaration and specific performance of the contract allegedly in favour of her father Amanat Rai and injunction against the respondents -defendants. The suit was 30 dismissed by the learned Trial Court by passing a short -order which is quoted herein below for ready reference: -
(2.) THE present first appeal was filed in this Court by the plaintiff -appellant Smt. Sitaro Devi on 03.01.2005 and was lying on the defect side for a considerable period and in the last date, on 26.05.2011, this Court granted four week's time to the learned counsel for the appellant to remove all the defects. Thereafter, on 09.07.2012, this 5 Court, issued fresh notices in relation to the unserved respondents to be given 'Dasti' and direct service was also permitted. After service of the notices on the respondents, the learned counsel Mr. Ravi Bhansali, has put in appearance for the respondents -defendants and after hearing both the learned counsels for the parties, on 05.01.2015, this Court this Court passed the following order, which is quoted 10 herein below for ready reference: - - "Learned counsel for the appellant/plaintiff may inform the Court on the next date as to whether against the order passed in SBCWP No. 7572/2007, Smt. Sitaro Devi vs. Mohd. Saleem & Ors. dismissing the writ petition on 29.11.2007, by a coordinate bench of this Court, has become final or not, and whether the appellant has challenged the said order before another higher court or not. The suit in the present case has been dismissed by the court below essentially on the ground that the appellant/plaintiff has not produced any evidence despite opportunity given by the court on 13.07.2004. Even though the present first appeal is now being argued at the admission stage after ten years of the impugned judgment and decree still the learned counsel for the appellant does not have the up -to date instructions with him about the date of order dated 29.11.2007 passed against the appellant, in which the learned Single Judge clearly held that she being one of the legal representatives of late Sh. Amanat Rai, was bound by the decree against her and her brother, namely, Sukhmal Chandra S/o. Sh. Amanat Rai, in which he challenged the redemption of mortgage by the respondent, who has already sold the property in question after redemption to the respondents and, therefore, lis had come to an end. No useful purpose will be served in entertaining this first appeal of the appellant/plaintiff in a suit for declaration filed by her claiming declaration of her rights and share in the suit property if she has not challenged the order dated 29.11.2007 dismissing her writ petition, referred above and if that has become final. Counsel may take instructions in this regard and inform the Court about the same on the next date. Put up on 12.01.2015." The learned counsel Mr. Raj Singh Chahar on behalf of Mr. Sajjan Singh appearing for the appellant -plaintiff without apprising the Court about last date's instructions submitted on merits today that the case was set down before the learned Trial Court on 13.07.2004 on the application filed by the defendants under Order 14 Rule 2 of the Code of Civil Procedure for deciding the preliminary issues arising in the matter first though on the previous date i.e. 01.06.2004, time for producing the evidence was sought by the learned counsel for the appellant -plaintiff and it was directed by the learned Trial Court, while granting last opportunity, that on the next date, evidence may be produced by the plaintiff. It is urged by the learned counsel Mr. Raj Singh Chahar that the appellant -plaintiff was under the impression that the matter would be first heard for deciding the preliminary issues though no evidence on behalf of the plaintiff was produced before the learned Trial Court on 13.07.2004. The learned counsel further submits that the learned Trial Court on 13.07.2004 without first deciding the application under Order 14 Rule 2 CPC of the defendants and without deciding the preliminary issues had dismissed the suit of the plaintiff for not leading the evidence in support of the issues framed and which were required to be proved by the plaintiff. He, therefore, submits that the present first appeal filed by the appellant -plaintiff deserves to be allowed and the matter deserves to be remanded sent to the learned Trial Court for fresh trial.
(3.) ON the other hand, the learned counsel Mr. Ravi Bhansali appearing for the respondents -defendants submitted that the litigation between the parties has a long chequered history and starts from the year 1945 till date and the matter has traveled upto this court also on earlier occasions and the plaintiff/her family members, who are Legal Representatives of late Shri Amanat Rai, have lost the legal battle with respect to this very suit property in similar suits and a brief synopsis of the long chequered history of the litigation between the parties as per the list of dates given by Mr. Ravi Bhansali, which is not disputed by other side is reproduced herein below for ready reference: - - ;