Swami Prasad vs Lakhan Singh
2022 Latest Caselaw 14457 MP

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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                           BEFORE

          HON'BLE SHRI JUSTICE ATUL SREEDHARAN
                ON THE 9th OF NOVEMBER 2022

                  SECOND APPEAL No.25 of 1993


      Between:-

 1.  SWAMI PRASAD S/O RILLI YADAV, AGED ABOUT 34
     YEARS, R/O MOGNA, TEHSIL JATARA
 2. HARI S/O RILLI YADAV, AGED ABOUT 30 YEARS, R/O
     MOGNA, TEHSIL JATARA
 3. MANGU S/O HARDAS LODHI, AGED ABOUT 42
     YEARS, OCCUPATION: AGRICULTURIST R/O
     TAPARIYAN, TEHSIL JATARA
 4. KARAN S/O BINDE LODHI,
 5. SUMME S/O BINDE LODHI,
 6. ASHARAM S/O BINDE LODHI,
 7. GOKUL S/O BINDE LODHI,
     ALL S/O LATE GANPAT LODHI, AND R/O TAPARIYAN,
     TEHSIL JATARA, DISTT. TIKAMGARH (MADHYA
     PRADESH)
 8. HALLU S/O HARDAS LODHI, AGED ABOUT 40 YEARS,
     OCCUPATION: AGRICULTURIST R/O TAPARIYAN,
     TEHSIL JATARA,
 9. KISHORI S/O HARDAS LODHI, AGED ABOUT 38
     YEARS, R/O TAPARIYAN, TEHSIL JATARA,
 10. SURA S/O MOTI LODHI, AGED ABOUT 35 YEARS, R/O
     TAPARIYAN, TEHSIL JATARA,
 11. MULUWA S/O MOTI LODHI, AGED ABOUT 35 YEARS,
     R/O TAPARIYAN, TEHSIL JATARA,
 12. GHURKA S/O MANAK LODHI, AGED ABOUT 40
     YEARS, R/O TAPARIYAN,
 13. DHARMA S/O BINDA KHANGAR, AGED ABOUT 35
     YEARS, R/O TAPARIYAN,
 14. NANHE BHAIYA S/O JALAM KHANGAR, AGED
     ABOUT 35 YEARS, R/O TAPARIYAN,
 15. SUKA S/O SARU KHANGAR, AGED ABOUT 50 YEARS,
     RESIDENT        TAPARIYAN,       OCCUPATION:
     AGRICULTURIST
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    16. NIRPAT S/O BINDA GADARIA, AGED ABOUT 45
        YEARS, OCCUPATION: AGRICULTURIST RESIDENT
        TAPARIYAN
    17. NATHUWA S/O BALDUA GADARIA, AGED ABOUT 50
        YEARS, R/O TAPARIYAN,
    18. DURJU S/O BHATTU GADARIYA, AGED ABOUT 40
        YEARS, R/O TAPARIYAN,
    19. RATIA S/O BHATTU GADARIYA, AGED ABOUT 38
        YEARS, R/O TAPARIYAN,
    20. CHIPPA S/O RADHHA, AGED ABOUT 50 YEARS, R/O
        TAPARIYAN,
    21. GORELAL S/O KANAI GADARIYA, AGED ABOUT 60
        YEARS, R/O TAPARIYAN,
    22. SMT. JAMNA D/O LAMPU SOUR, AGED ABOUT 30
        YEARS, R/O TAPARIYAN,
    23. SMT. RACHKU D/O LAMPU SOUR, AGED ABOUT 28
        YEARS, R/O TAPARIYAN,
    24. DAYALI S/O LAMPU SOUR, AGED ABOUT 25 YEARS,
    25. DHANNU S/O LAMPU SOUR, AGED ABOUT 22 YEARS,
        R/O TAPARIYAN,
    26. DAMODAR S/O NOT KNOWN, AGED ABOUT 18
        YEARS, R/O TAPARIYAN,
    27. SMT. RADHIYA WIDOW OF LAMPU SOUR, AGED
        ABOUT 55 YEARS, R/O TAPARIYAN, TEHSIL JATARA,
        DISTRICT TIKAMGARH

                                                                                     .....APPELLANTS
          (BY SHRI NIKHIL TIWARI, ADVOCATE FOR THE APPELLANTS)

          AND

    1.    LAKHAN SINGH S/O RAGHUNATH SINGH, AGED
          ABOUT 66 YEARS, OCCUPATION: AGRICULTURIST
          R/O TAPARIYAN, TEHSIL JATARA, DISTRICT
          TIKAMGARH (MADHYA PRADESH)
    2.    THE STATE OF MADHYA PRADESH THROUGH
          COLLECTOR, DISTRICT TIKAMGARH (MADHYA
          PRADESH)

                                                                                   .....RESPONDENTS

          (MR.ISHTEYAQ HUSAIN, ADVOCATE FOR THE RESPONDENT NO.1)
....................................................................................................................
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            This appeal coming on for orders this day, the court passed the

     following:


                                    JUDGMENT

The present appeal has come up today for orders on various IAs that have been filed. I.A. No.10475/2019 has been filed for substituting the legal representatives of the deceased/respondent No.1-Lakhan Singh. This application for substitution has been filed on 21.08.2019. In order to understand the import of this application, a few orders passed earlier by this Court and the Supreme Court would have to be referred to. The appeal itself is of the year 1993. The first respondent passed away on 28.05.1998. The appellants were unaware of his death and nearly eight years later, on 01.08.2006, counsel for the first respondent informed the Court about the passing away of his client. However, on that day the counsel for the appellants, who ought to have been present before this Court, was not present. As the appellants were unaware of the death of the first respondent even after 01.08.2006, on 09.08.2007 the appeal was dismissed as having abated, as the LRs of the deceased/respondent No.1 were not brought on record within the prescribed time.

2. The appellant-Swami Prasad and another had filed an SLP before the Supreme Court being SLP No.13904, in the year 2009 itself. It was converted into a civil appeal being C.A.No.2163/2010 and was disposed of vide order dated 08.03.2010. While doing so, the Supreme Court referred to the basic facts leading to the abatement of this second appeal and thereafter, referred to the case of the Supreme Court in Perumon Bhagvathy Devaswom vs. Bhargavi Amma reported in 2008 (8) SCC 321, where the Supreme Court has held that if a respondent dies during the pendency of the appeal and where the appeal itself has been pending for

several years without being listed for hearing, the Court should take a lenient view in considering the application for condoning the delay and setting aside the abatement.

3. Thereafter, it set-aside the order passed by the High Court dated 09.08.2007, set-aside the abatement, condoned the delay and permitted the appellants to bring the legal representatives of the deceased/first respondent on record. Thus, it is seen that the operative part of the Supreme Court's order required the appellants to file an appropriate application to bring the LRs of the deceased/first respondent on record. Thereafter, there is an inordinate delay of nine years in moving the aforementioned application to substitute the LRs of the respondent No.1.

4. In these nine years, a lot has transpired. On 25.07.2011, the second appeal was listed before this Court, and it was dismissed for want of prosecution. In 2011 itself, the appellants filed an MCC being MCC No.1328/2011 for the restoration of the second appeal which was restored by the order of this Court dated 22.11.2012 by imposing a cost of Rs.1,000/-.

5. On 14.02.2013, when the appeal was listed after its restoration, the counsel for the appellants Mr.Ranveer Singh Parihar stated before the Court that he had not been able to contact the appellants and therefore, on 14.02.2013, this Court once again dismissed the second appeal for non-prosecution. Again, an MCC was filed being MCC No.354/2013 for restoring the second appeal for the second time. In this petition, the ground was taken that the appellant No.1 moved an application for change of counsel on 14.02.2013, the same date on which the second appeal was listed before this Court when the earlier counsel Mr. Ranveer Singh Parihar appeared and pleaded no instruction. Therefore, this Court held that as on the date on which the appeal was dismissed for want of prosecution, the appellants

had filed an application for change of counsel, the same was considered as reasonable cause and the MCC was allowed, and the second appeal was restored for the second time.

6. Thereafter, on 17.03.2015, this appeal was dismissed for the third time for non-prosecution, as no one appeared on behalf of the appellants. Learned counsel for the appellants submits that on 17.03.2015 when no one appeared on behalf of the appellants, the same was on account of the 'Vakalatnama' for appearance on behalf of the appellants not having been given to the counsel, which disabled him from appearing on behalf of the appellants. Here the conduct of the appellants is called into question. He files an application for change of counsel on 14.02.2013 and two years thereafter on 17.03.2015 when the appeal was dismissed for non- prosecution, the appellants do not even give the 'Vakalatnama' to his counsel to enable him to appear in this appeal. Thereafter, once again an MCC No.1849/2015 has promptly been filed for restoration of the second appeal. By order dated 09.12.2017 passed in the National Lok Adalat, the second appeal was restored yet again. Thus, it is seen that thrice this appeal was dismissed for want of prosecution after the order of the Supreme Court in favour of the appellant for which the blame can squarely be placed at the doorsteps of the appellants themselves in view of their conduct.

7. Thereafter, on 19.08.2019, the case was once again listed on Board. It was on this date that the change of counsel application filed on 14.02.2013 was considered by this Court. In its order, this Court observed that the application for change of counsel does not mention how many appellants are interested to change the counsel. It further observed that on perusal of the record, it appeared that the appellants are not conducting in this case with a view to dispose of the same as desired by Hon'ble the Apex Court and it is submitted that some of the appellants have died and to bring their

legal heirs on record, the application has been filed but no steps have been taken to bring on record the legal heirs of the respondent despite the order of Hon'ble the Apex Court dated 08.03.2010. This Court further went on to observe that the conduct of the appellants in the view of this Court was such that the case ought to be dismissed merely on the aforesaid ground but thereafter taking a sympathetic view of the case, gave a last opportunity on 19.08.2019 to the appellants to specify how many appellants want to change the counsel and how many appellants have died and who are their legal representatives and take necessary steps to bring them on record if possible and also take steps to bring the LRs of the respondent in compliance with the order of the Apex Court dated 08.03.2010.

8. It is interesting that the clients, whom the learned counsel for the appellants submits, are poor people, living in remote areas and do not even possess a mobile phones, on account of which, delay of nine years had occasioned in attempting to comply with the order of the Supreme Court, have within two days of the order of 19.08.2019, sent the 'Vakalatnamas' to the learned counsel and which were filed before this Court on 21.08.2019. Along with the orders of this Court, is also the note of the DA-1 dated 26.08.2019 whereby the DA has drawn the attention of this Court to the fact that this second appeal was listed for final hearing under category of oldest cases up to the year 2000 on 19.08.2019 and that the I.A. No.2020/2013 for change of counsel was already allowed as per Registrar (J-1) order [Chapter-5, R- 1(w) The High Court M.P. Rules 2008] dated 04.01.2018.

9. The application for complying with the order of the Supreme Court dated 08.03.2010 is ultimately filed as I.A. No.10475/2019 on 21.08.2019. It is also relevant to mention here that 'vakalatnamas' of 15 appellants were also presented and filed before this Court on the same date as I.A. No.10477/2019.

10. Learned counsel for the appellants submits that the appellants are extremely poor, living in a remote village and therefore, there was a delay of nine years that had occasioned in complying with the order of the Supreme Court. He further says that they do not possess mobile phones even as on date. This contention put forth by the learned counsel for the appellants deserves outright rejection for the following reasons:- (a) When the appeal was dismissed for the first time on 09.08.2007, for having abated, the appellants could approach the Supreme Court despite their poverty and living in remote non-accessible village within two years in the year 2009 itself. However, the issue of the appellants' poverty and their residence in a remote area has now been used as an excuse for not comply promptly with the order of the Supreme Court passed on 08.03.2010. (b) Pursuant to the order dated 19.08.2019 passed by this Court, when the Court had taken a stringent view that the appellants have not complied with the order of the Supreme Court and that their appeal ought to be dismissed on this count alone, within two days, the 'Vakalatnamas' of 15 other appellants are filed before this Court. I.A. No.10477/2019 seeking to comply with the order of the Supreme Court passed in 2010, is also filed on 21.8.2019. Thus, it is clear that when the Court took a stringent view about the conduct of the appellants, they have immediately bounced into action and filed the appropriate application for compliance of the order of the Supreme Court dated 8.3.2010 and also filed the 'Vakalatnamas' of 15 other appellants and

(c) On perusing the I.A. No.10477/2019, it is apparent that no reason whatsoever, has been given by the appellants as to what impeded them before 2019 from filing the application for substitution of the LRs. of respondent No.1 Lakhan Singh, as directed by the Supreme Court in its order dated 8.3.2010. Upon perusing the earlier orders passed by this Court, it appears that on 29.1.1993, this Court had granted the benefit of interim

order of status-quo in favour of the appellants. Thereafter, the appeal was admitted on 07.04.1994.

11. The conduct of the appellants for not complying promptly with the directions of the Supreme Court to bring on record the LRs. of respondent No.1 for a period of nine years, shows gross disregard for the order passed by the Supreme Court. Undoubtedly, this Court cannot restore or revive the order of abatement dated 09.08.2007 as that has specifically been set aside by the Supreme Court, and the abatement condoned vide order dated 08.03.2010. However, on account of non-compliance with the order of the Supreme Court for a period of 9 years and inadequate reasons being given for the same, in I.A. No.10477/2019, the I.A. is rejected and consequently, the appeal is also dismissed for want of compliance to the order dated 8.03.2010.

(ATUL SREEDHARAN) JUDGE pnm/a.

Digitally signed by POONAM MANEKAR Date: 2022.11.11 11:49:17 +05'30' Adobe Reader version: 11.0.8