VINEET KOTHARI, J. - (1.) THE present first appeal under Section 96 of CPC, 1908, filed by the appellants/plaintiffs is pending for last six years on the defect side. The present first appeal was filed on 03.05.2008 by the appellants/plaintiffs with a delay of 271 days as pointed by the office, assailing the impugned judgment and decree dated 08.05.2007 passed by learned Additional District Judge, Fast Track No.4, Jodhpur, dismissing the plaintiffs' suit for partition.
(2.) AN application has been filed under Section 5 of the Limitation Act for condonation of delay along with first appeal, which application is supported by the affidavit of appellant No.1, Bhanupratap Singh. The said application was filed on 03.05.2008. The averments made in the affidavit in support of application u/s 5 of the Limitation Act reads as under: - "2. That, I had engaged the counsel for conducting the suit and the suit was got filed. Thereafter, I did not receive any communication from my counsel. I was not feeling well and suffering from cardiac problem and had also undergone by pass surgery of heart thereafter some complications arises from last one and half year, therefore I was unable to travel and could not come to Jodhpur to inquire about the case. 3. That, in fact, I'm living out of Rajasthan at the distance of more than eight hundred km away from Jodhpur and as I was suffering from illness and my counsel pleaded 'no instructions' without informing me. And I could only know of the decision of this case when I came to Jodhpur to attend the date in probate proceeding pending before the District Court, Jodhpur on 25.03.2008. Then I made further inquiry and inspected the file and then applied for certified copies of judgment and decree etc. and then preferred this appeal immediately without any delay. 4. That, the delay caused in filing the appeal is bonafide and I could not submit the appeal within time having sufficient ground."
(3.) THE said first appeal is still listed for last six years in the defect side. Today also, the matter has come up on an application (IA No.4434/14) filed by the plaintiffs/appellants under Order 22 Rule 3 and 11 r/w Section 151 CPC for bringing the legal representatives of the plaintiff/appellant No.3, Smt. Neera Kumari, who is said to have expired on 04.06.2012 leaving behind her two legal representatives, namely, Karni Singh and Lakshita. The said application (IA No.4434/14) has been filed with a delay of about 2 years, therefore, an application under Section 5 of the Limitation Act has also been filed for seeking condonation of the delay occasioned in filing the same, which is supported by affidavit of legal representative of Smt. Neera, namely, Karni Singh S/o Sh. Hanwant Singh. The averments made in the said affidavit in support application u/s 5 of the Limitation Act (IA No.507/14) reads as under: - "1. That, in the above noted case one of the appellant Neera Kumari had died on 4.6.2012. 2. That, I came to know of pendency of this litigation only when on some days ago I went to meet appellant Bhanupratap Singh Ji to ask about his health condition who was ill from last many months. Bhanu Pratap Singh Ji told me regarding pendency of this case and gave me the detail regarding the counsel's name and address and asked me to contact to counsel. Thereafter I contacted to counsel and as advised got prepared this application to became party in the matter. Hence the delay caused in moving this application is due to 'sufficient cause', and the delay deserves to be condoned. Therefore, it is most respectfully prayed that this application for condonation of delay may kindly be allowed and the delay caused in moving the application may kindly be condoned." The application (IA No.4434/14) under O. 22 R. 3 and 11 read with Section 151 CPC has been filed much beyond the prescribed period of limitation i.e. 90 days of the death of Smt. Neera Kumari.;