Madhya Pradesh High Court
Mst. Bhagwati Bai vs Dashrath Lal on 25 February, 2021
Author: Anjuli Palo
1 SA-1331-2009
The High Court Of Madhya Pradesh
SA-1331-2009
(MST. BHAGWATI BAI Vs DASHRATH LAL AND OTHERS)
13
Jabalpur, Dated : 25-02-2021
Shri Sharad Gupta, counsel for the appellant.
Shri Akhilesh Jain, counsel for the respondents.
Heard on I.A. No. 1223/2021, which is an application filed by the
appellant for deleting the name of respondent Nos. 4 and 5.
Respondent Nos. 4 and 5 have died during the pendency of this
appeal, their legal representatives are already on record as respondent Nos. 6
and 7, therefore, this application is allowed. Let names of respondent Nos. 4
and 5 be deleted within three working days.
Also heard on I.A. No.15446/2015, which is an application under
Order 22 Rule 9 of the CPC filed by the appellant for setting aside the
abatement against respondent No. 2; I.A. No.6137/2013, which is an
application under Order 22 Rule 4 of the CPC for bringing legal heirs of
respondent No. 2 on record and on I.A. 15447/2015, which is an application
under Order 5 of the Limitation Act seeking condonation of delay in filing
I.A. No. 6137/2013.
Learned counsel for the appellant has submitted that on 13.3.2013
when the appeal came up for hearing, learned counsel appearing on behalf of
respondent No. 2 informed to the Court that respondent No. 2 has expired on
6.8.2011. Only on the said date, the appellant got the knowledge about death
of respondent No. 2. Thereafter, he moved the applications for setting aside
the abatement against respondent No.2, for bringing his legal heirs on record
and condonation of delay in filing the application for bringing legal heirs on
record. In this regard, learned counsel for the appellant has placed reliance
on the decisions of the Supreme Court in the cases of Hari Prasad Bhuyan
Vs. Durga Prasad Bhuyan and others reported in AIR 2008 SC 1202
and O.P. Kathpalia Vs. Lakhmir Singh (dead) and others reported in
2 SA-1331-2009
AIR 1984 SC 1744.
Learned counsel for the respondents has submitted that the application
for substitution of legal heirs of respondent No. 2 was filed belatedly after
about four years. It is further submitted that the appellant and respondent No.
2 belonged to the same family, therefore, it is very difficult to believe that the
appellant had no knowledge about the death of respondent No. 2. The
appellant has deliberately not filed the application for substitution of legal
heirs of respondent No. 2 within time. Learned counsel for the respondents
has placed reliance on the decision of the Supreme Court in the case of the
Supreme Court in Budh Ram Vs. Bansi reported in (2010) 0 S (SC) 688.
I have heard learned counsel for the parties at length. For the reasons
mentioned in the application in the light of the judgments of the Supreme
Court in the cases of Hari Prasad Bhuyan (supra) and O.P. Kathpalia
(supra), the delay caused in filing the application for substitution of legal
heirs of respondent No. 2 has been satisfactorily explained and appears to be
bonafide, therefore, I.A. Nos. 15446/2015 and I.A. No. 15447/2015 are
hereby allowed. Delay is condoned and abatement against respondent No. 2
is hereby set aside subject to payment of cost of Rs. 3000/- by the
appellant to the respondents within 15 days from today. As a
consequence thereof, I.A. No. 6137/2013 is allowed. Let proposed legal heirs
of respondent No. 2 be substituted within seven working days.
After substitution of proposed legal heirs of respondent No.2, notice
be issued to them by both, registered as well as ordinary, modes on payment
of process fee within seven working days, returnable within four weeks.
List after four weeks.
(SMT. ANJULI PALO)
JUDGE
PB
Digitally signed by
PRADYUMNA BARVE
Date: 2021.02.25
15:55:38 +05'30'
