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Judgment
V.K. Bist, J.—Heard learned Counsel for the parties.
Present petition has been filed by the petitioner challenging the order dated 19.03.2010 by which her application u/s 5 of Limitation Act in Civil Appeal No. XXX/2008 "Smt. Basanti v. Smt. Damyanti Devi" was rejected. The said application was filed by the petitioner for condoning the delay in filing the appeal against the order dated 11.03.2008, by which his application under Order 1 Rule 10 of C.P.C. was rejected by the Trial Court.
Brief facts of the case are that in the year 1988 father-in-law of the petitioner, Shri Gopal Ram died leaving behind him his son Bhagat Ram and his family and married daughter Smt. Damyanti Devi, the respondent. He executed a Will in favour of respondent. The respondent, on the basis of an alleged unregistered Will of Shri Gopal Ram, got mutated the premises in question in her favour and pressurized the petitioner to vacate the house. The petitioner in the year 2000 instituted a Civil Suit No. 77/2000 "Smt. Basanti Devi v. Smt. Damyanti Devi" before the Additional Civil Judge (Jr. Div.), Hadwani, District Nainital for permanent injunction. The same was decreed 24.01.2007 and respondent was directed not to evict the petitioner except in accordance with law.
During the pendency of the aforesaid suit, the respondent instituted suit No. 10 of 2006 "Smt. Damyanti Devi v. Bhagat Ram" for the eviction of Bhagat Ram (the husband of the petitioner) from a shop and a room. In the said suit the petitioner was not made a party. The suit was decreed in the favour of respondent on 11.03.2008 and the husband of the petitioner was directed to hand over the possession of the premises in question to the respondent/plaintiff. The husband of the petitioner filed Civil Appeal No. 13/2008 "Bhagat Ram v. Damyanti Devi" which was dismissed on 19.03.2010. The husband of the petitioner also filed a writ petition No. 549/2010(M/S) before this Court challenging the order dated 19.03.2010 passed by District Judge, Nainital in Civil Appeal No. 13/2008 Bhagat Ram v. Damyanti Devi, and the order dated 11.03.2008, passed by the learned Civil Judge (Sr. Div.), Nainital in Civil suit No. 10/2006 "Smt. Damyanti Devi v. Bhagat Ram" and the order dated 16.04.2010 passed in Execution Case No. 5 of 2010 "Damyanti Devi v. Bhagat Ram".
The said writ petition was listed on 20.04.2010. On that day, the learned Counsel for the petitioner of that petition gave an undertaking before the Court that petitioner needs time upto 31.12.2010 and will vacate the premises in question on or before 31.12.2010. In view of the undertaking given by the learned Counsel for the petitioner, the writ petition No. 549/2010 (M/S) was disposed of by permitting the said petitioner (i.e. husband of the petitioner) to vacate the premises in question on or before 31.12.2010.
The petitioner has also filed the present petition challenging the order dated 19.03.2010 passed by the District Judge, Nainital, in Civil Appeal No. XXX of 2008 Smt. Basanti v. Smt. Damyanti Devi, by which the application of the petitioner u/s 5 of Limitation Act was rejected. The dispute is in respect of same property which was a subject matter in writ petition No. 549/2010 (M/S). Since, the husband of the petitioner has already given an undertaking to vacate the premises in question, the present petition has become infructuous. Even otherwise on merit, the learned Counsel for the petitioner could not satisfy the Court about the reason of delay in filing the appeal. As per record, it is clear that the petitioner had knowledge of the said order four months prior to the filing of the appeal.
Consequently, the writ petition is dismissed.
Interim Relief Application (CLMA No. 2210/2010) stands decided.
No order as to costs.