1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Smt. Kamla Devi @ Lali V/s. Sohan Lal & Ors. (S.B. Civil First Appeal No.298/2010) S.B. Civil First Appeal Under Section 96 of Civil Procedure Code Date of Order :: July 21, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Sudesh Bansal for the appellant. Aggrieved by the judgment and decree dated 26.03.2010 and by interlocutory orders passed during the trial dated 13.12.2007 and 23.02.2010, the appellant has filed this Civil First Appeal. It is the case of the appellant that she is a bona fide purchaser of the property in dispute as she had purchased the property through a registered sale-deed dated 26.12.1985 from the erstwhile owner, Mr. Bhartendra Singh through his father and power of attorney holder Mr. Thakur Janak Singh. It is further her case is that while she had gone on pilgrimage between 27.12.1985 to 05.01.1986, defendant No.1, Sohan Lal, had forcefully 2 entered into her property and have taken over its possession. She further claims that Sohan Lal had instituted a suit for declaring the sale-deed dated 26.12.2985 as void and for permanent injunction against the appellant. However, the said suit was dismissed, vide judgment dated 02.04.1986. In the present suit, notice were served on defendant No.1, Sohan Lal. However, he chose not to contest the suit. Therefore, ex-parte proceedings were initiated against him. On 08.08.2002, defendant Nos. 2 & 3, Kuldeep Singh and Smt. Shaili Devi, filed an application under Order 1 Rule 10 CPC for being impleaded in the suit. In the application, they claimed that vide sale deed dated 28.04.1997, they purchased the suit property from Sohan Lal. Since the said application was allowed by the learned Civil Court, they filed a written statement on 19.07.2005. In the written statement, they claimed that Sohan Lal purchased the said property from the registered owner and Sohan Lal had filed a suit for specific performance against the original owner, Thakur Jagat Singh. The said suit was decreed in favour of Sohan Lal, vide judgment and decree dated 15.03.1993. In execution of this judgment and decree, the Civil Court got registered the sale-deed in 3 favour of Sohan Lal on 21.10.1993. Subsequently, through two separate sale-deeds, both dated 28.04.1997, defendant Nos. 2 & 3 claimed that they purchased the property from Sohan Lal. Defendant Nos. 2 & 3 also claimed that initially Sohan Lal had sold one-third of his share of the property to one Ajay Gupta. Subsequently, defendant No.2, Kuldeep Singh, bought the said share vide sale deed dated 28.11.1997. Therefore, the appellant claims that she moved an application for amending the plaint in order to challenge the sale deeds dated 21.10.1993, 28.04.1997 and 28.11.1997. Vide order dated 24.10.2007, the learned Civil Court allowed the said amendment application. However, the appellant claims that she had no information that her amended application had been allowed. Due to her ignorance, she could neither submit the amended plaint, nor deposit the necessary court fees. Therefore, vide order dated 13.12.2007, the right of the appellant to submit the amended plaint was closed by the learned Civil Court. The appellant further claims that from 2007 till 23.02.2010, she did not know about the proceedings as according to her, her husband expired in the year 2006 and 4 her counsel Matadin Gupta suffered from paralysis. Since the appellant was not attending the Court, eventually vide order dated 23.02.2010, her evidence was closed by the learned Civil Court. Vide judgment and decree dated 26.03.2010, the suit has been dismissed by the learned Civil Court. Hence, this appeal before this Court. Mr. Sudesh Bansal, the learned counsel for the appellant, has contended that since the appellant happens to be a poor, illiterate and widowed lady, therefore, the interlocutory orders dated 13.12.2007 and 23.02.2010 should be quashed and set aside and the appellant should be given an opportunity to submit an amended plaint and to lead the necessary evidence. He further pleads that the judgment dated 26.03.2010 should also be set aside. The learned counsel further contends that in case it is not done, a grave injustice shall be caused to the appellant. The conduct of the appellant creates doubt in the mind of this Court. Initially, the appellant claims that Sohan Lal had trespassed her property between 27.12.1985 to 05.01.1986, yet she did not file a civil suit against him for ten long years, till 1996. The studied silence of the appellant over the illegal possession of the respondent raises certain questions about the bona fide 5 conduct of the appellant. Although Mr. Sudesh Bansal has tried to explain this silence by claiming that since Sohan Lal himself had instituted a civil suit for declaration of the sale- deed dated 26.12.1985 as void and for permanent injunction, the appellant did not file her civil suit. However, this is hardly an explanation as the suit being filed by Sohan Lal did not prevent the appellant from filing her suit for declaration and possession from Sohan Lal. The explanation given by the learned counsel is a flimsy excuse and not a logical justification. The explanation for non-pursuing of the suit filed by the appellant is equally untenable. According to the appellant, she had lost her husband in the year 2006, yet the order of closing her right to file an amended plaint was not passed till 13.12.2007. Obviously, there was sufficient time for her to over come her shock and pain for having lost her husband. Moreover, the appellant does not inform this Court as to the date when her counsel, Mr. Matadein Gupta had suffered from paralysis. Further, this Court is not informed whether the office of Mr. Matadin Gupta stood closed after he had suffered paralysis. Thus, there is no reason for the appellant for not having contacted the counsel from 2007 till 2010. It is rather surprising that a 6 woman who claims to be a widow, a helpless person does not fight tooth and nail for the possession of her property. Therefore, her conduct raises doubts again about her bona fide. Even if the order dated 23.02.2010 was passed by the learned Civil Court, again for the third time, the appellant kept a studied silence over the entire issue. It is only when the final judgment dated 26.03.2010 is passed against her, suddenly she wakes up to the entire scenario. It is, indeed, a settled position of law that a litigant who sleeps over his/her rights, such a litigant cannot expect the Court to rush to his/her rescue. Therefore, this Court does not find any merit in this appeal; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-