K.K.Kapoor (Deceased) Through ... vs Aminuddin (Since Dead) A Husna Bee
2022 Latest Caselaw 6884 MP

                                  1
         IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                             BEFORE
            HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                          ON THE 7th OF MAY, 2022

                 MISC. PETITION No. 3942 of 2019

     Between:-
1.   K.K.KAPOOR (DECEASED) THROUGH LRS 1
     SMT.SHOBHA KAPOOR W/O LATE SHRI K.K.
     KAPOOR    , AGED   ABOUT  67  YEARS,
     OCCUPATION: HOUSEWIFE R/O H.NO. 0589,
     MARHTAL, BADI OMTI, KAMAL OPTICAL,
     JABALPUR (MADHYA PRADESH)

2.   KARTIK KAPOOR S/O LATE SHRI K.K KAPOOR ,
     AGED   ABOUT     28  YEARS, OCCUPATION:
     BUSINESS H.NO. 589 MARHATAL BADI OMTI
     KAMLA OPTICAL (MADHYA PRADESH)

3.   KASHISH KAPOOR S/O LATE SHRI K.K KAPOOR
     , AGED ABOUT 38 YEARS, OCCUPATION:
     BUSINESS H.NO. 589 MARHATAL BADI OMTI
     KAMLA OPTICAL (MADHYA PRADESH)

                                                                   .....PETITIONER
     (By Shri R.K. Sanghi, learned counsel for the petitioners )

     AND

1.   AMINUDDIN (SINCE DEAD) A HUSNA BEE D/O
     LATE SHRI AMINUDDIN , AGED ABOUT 45
     Y E A R S , R/O 595/522, KHATIK MOHALLA,
     JAWAHAR        WARD,    JABALPUR (MADHYA
     PRADESH)

2.   MUBINUDDIN S/O LATE SHRI AMINUDDIN ,
     AGED ABOUT 44 YEARS, R/O 595/522, KHATIK
     MOHALLA, JAWAHAR WARD, JABALPUR
     (MADHYA PRADESH)

3.   VASIMUDDIN S/O LATE SHRI AMINUDDIN ,
     AGED ABOUT 42 YEARS, R/O 595/522, KHATIK
     MOHALLA, JAWAHAR WARD, JABALPUR
     (MADHYA PRADESH)

4.   NASEERUDDIN S/O LATE SHRI AMINUDDIN ,
     AGED ABOUT 29 YEARS, R/O 595/522, KHATIK
                                        2
           MOHALLA, JAWAHAR                WARD,   JABALPUR
           (MADHYA PRADESH)

                                                                  .....RESPONDENTS
           (By Shrsi T.S. Ruprah,learned Senior counsel with Shri U.S.
           Tiwari,learned counsel for the respondents)

      This petition is coming on for hearing this day, the court passed the
following:
                                        ORDER

The petitioners have preferred petition under Article 227 of the constitution of India being aggrieved with order dated 23/04/2019 (Annexure P/1) passed in M.C.A. No. 238/2018 by 8th Additional District Judge, Jabalpur allowing the appeal preferred by the plaintiff/respondents against the order dated 15/11/2018 passed in Civil Suit 257A/2013 by VIIth Civil Judge, Class-I Jabalpur dismissing the suit as abated under Order 22 Rule 9 of CPC.

2. By way of this petition the petitioners/defendants have challenged the

order passed by learned appellate Court on inter alia grounds that the impugned order is not at all tenable in law and is against the law laid down by the apex Court in this regard. The reasons for condonation of delay as stated by the respondent/plaintiff are not bonafide and sufficient, hence not tenable. The respondent/plaintiff did not prefer any application under Order 22 Rule 9 of CPC for setting aside of abatement. The judgment cited by the first appellate court i.e. AIR 2007 MP 223 (Jhabbulal Vs. Purro) has been wrongly interpreted and applied in the facts and circumstances in the present case. Under these circumstances, learned counsel for the petitioner prays for setting aside of the impugned order. In support of his contention, he placed reliance of several judgments of Hon’ble apex Court reported in AIR 2007 MP 223, AIR 1963 MP 183, AIR 2010 SC 3043, (2009) 11 SCC 183, (2017) 13 SCC 414, AIR 2007 AP 325 and (2017) 14 SCC 722 and prays that petition be allowed.

3. On the other hand, learned Senior counsel for the respondents opposed the

contentions raised by learned counsel for the petitioners by supporting the impugned order and prays for rejection of the petition.

4. I have heard learned counsel for the parties and perused the documents available on record. It is evident from the above narrated facts that the defendant died on 08/01/2018 and the information in this regard was given by the legal representatives of sole defendant to the plaintiffs on 25/04/2018 under Order 22 Rule 10 of CPC, thus, there is delay of only 12 days in filing the application under Order 22 Rule 4 of CPC for bringing legal representatives of the defendant. It is also clear that the plaintiff is a 80 years old and sick person, who always remains ill, therefore, looking to his old age problems, the delay of only 12 days on the part of the plaintiff deserves to be condone and therefore, the appellate Court has not committed any error in passing the impugned order by allowing the application under Order 22 Rule 4 of CPC alongwith application under Section 5 of the Limitation Act because the plaintiff/respondents have shown their bona fide in filing the application and also the reasons why the application has not been filed in time. Considering the reasons assigned in the application and also taking into consideration the sufficient cause allowed the appeal and condone the delay. Learned first appellate Court has passed speaking order and directed both the parties to appear before the trial Court for further proceedings and the trial Court has also been directed to proceed in the

matter in accordance with law. The citations given by learned counsel for the petitioners/defendants are altogether different from the facts of the present case and therefore, they do not help the petitioners/defendants.

5. As discussed herein above, the petition being sans merit is dismissed.

(ARUN KUMAR SHARMA) JUDGE

Signature Not Verified SAN

Digitally signed by SANTOSH KUMAR TIWARI Date: 2022.05.10 17:38:41 IST