Madhya Pradesh High Court
Aadesh Kumar vs Lallu Singh @ Lallu Bhaiya on 17 November, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 17th OF NOVEMBER, 2022
MISC. PETITION No. 4974 of 2022
BETWEEN:-
1. AADESH KUMAR S/O SATYA PRAKASH
KAURAV, AGED ABOUT 28 YEARS,
OCCUPATION: AGRICULTURE R/O VILLAGE
RAMKHEDI, TEHSIL GADARWARA, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
2. YOGESH KUMAR S/O SATYA PRAKASH
KAURAV, AGED ABOUT 28 YEARS,
OCCUPATION: AGRICULTURE R/O VILLAGE
RAMKHEDI TEHSIL GADARWARA, DIST
NARSINGHPUR (MADHYA PRADESH)
3. BHAGWATI BAI W/O SATYA PRAKASH KAURAV,
AGED ABOUT 55 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE RAMKHEDI TEHSIL
GADARWARA, DISTRICT NARSINGHPUR
(MADHYA PRADESH)
4. YOGITA W/O KULDEEP SINGH KAURAVSATYA
PRAKASH KAURAV, AGED ABOUT 24 YEARS,
OCCUPATION: HOUSEWIFE R/O VILLAGE MAU
TEHSIL GADARWARA DISTRICT NARSINGHPUR
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ADITYA NARAYAN SHARMA - ADVOCATE)
AND
1. LALLU SINGH @ LALLU BHAIYA S/O HALKE
BHAIYA RAJPUR, AGED ABOUT 65 YEARS,
OCCUPATION: AGRICULTURE R/O VILLAGE
RAMKHEDI TEHSIL GADARWARA, DIST
NARSINGHPUR (MADHYA PRADESH)
2. DEVENDRA S/O BADRI PRASAD KAURAV, AGED
Signature Not Verified
SAN ABOUT 43 YEARS, OCCUPATION: AGRICULTURE
R/O VILLAGE RAMKHEDI TEHSIL
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.17 19:24:54 IST
GADARWARA, DIST NARSINGHPUR (MADHYA
PRADESH)
2
3. OMJI @ OM PRAKASH S/O BADRI PRASAD
KAURAV, AGED ABOUT 65 YEARS,
OCCUPATION: AGRICULTURE R/O VILLAGE
RAMKHEDI TEHSIL GADARWARA, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
4. SMT. SUSHILA BAI D/O BADRI PRASAD
KAURAV, AGED ABOUT 50 YEARS,
OCCUPATION: HOUSEWIFE R/O DAHALWADA
(NANDER) TEHSIL GADARWARA DISTRICT
NARSINGHPUR (MADHYA PRADESH)
5. SMT. ATAR BAI W/O NIRANJAN SINGH
KAURAV, AGED ABOUT 48 YEARS,
OCCUPATION: HOUSEWIFE R/O GHAT PIPARIYA
TEHSIL GADARWARA DISTRICT NARSINGHPUR
(MADHYA PRADESH)
6. SMT. HAKKI BAI W/O RAM KUMAR KAURAV,
AGED ABOUT 45 YEARS, OCCUPATION:
HOUSEWIFE R/O BARELI (BARHATA) TEHSIL
GADARWARA DISTRICT NARSINGHPUR
(MADHYA PRADESH)
7. CHANDRABHAN SINGH S/O KUNJI LAL
KAURAV, AGED ABOUT 60 YEARS, R/O VILLAGE
RAMKHEDI TEHSIL GADARWARA, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
8. AZAD SINGH S/O KUNJI LAL KAURAV, AGED
ABOUT 45 YEARS, R/O VILLAGE RAMKHEDI
TEHSIL GADARWARA, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
9. STATE OF MADHYA PRADESH THROUGH
COLLECTOR NARSINGHPUR DISTRICT
NARSINGHPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI MANAS VERMA - GOVERNMENT ADVOCATE FOR THE
RESPONDENT NO.9-STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified
This petition is filed by petitioners under Article 227 of the Constitution
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.17 19:24:54 IST
of India, on behalf of legal representatives of the defendant No.1, who have
been allowed to be substituted as legal representatives vide order dated
06.08.2022, passed in R.C.S.No.40-A/2015, by the learned Court of I Civil
Judge (Junior Division), Gadarwara, District Narsinghpur, allowing an
application for substitution of legal heirs along with an application under Section
5 of the Limitation Act read with Order 22 Rule 9 of Code of Civil Procedure
(hereinafter referred to as the 'Code' for short).
2. Learned counsel for petitioners submits that there is inordinate delay in filing
an appropriate application. It is submitted that admittedly defendant No.1 died
on 20.09.2018. An application to bring legal heirs was filed under Order 22
Rule 10 of the Code on 17.06.2019, without filing any application under Section
5 of the Limitation Act or under Order 22 Rule 9 of the Code.
3. Thereafter, belatedly application under Section 5 of the Limitation Act was
filed on 12.07.2022 and overlooking all these facts, learned Civil Judge has
allowed the application for substitution of legal heirs which is illegal and
arbitrary, therefore, the impugned order be set aside.
4. Shri Manas Mani Verma, learned Govt. Advocate for State- respondent
No.9, in his turn, submits that technicalities cannot be allowed to defeat an
application for substitution of legal heirs as the purpose of legal provisions is
aid the cause of justice and not to defeat them on hyper technical approach. It is
further submitted that merely mentioning of an incorrect provision will not the
defeat the cause and it is for the Court to construe the correct provision and
pass appropriate orders.
5. After hearing learned counsel for the parties and going through the record
as also held by Hon'ble Supreme Court in Hari Prasad Bhuyan Vs. Durga
Signature Not Verified
SAN
Prasad Bhuyan (AIR 2008 SC 1202), has held that plaintiff had filed on
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.17 19:24:54 IST
getting information about death of defendant at time of rectification of decree.
He applied immediately for substitution. Defendants though had knowledge of
death not disclosing fact in earlier round of litigation cannot take advantage of
belated approach of plaintiff. Delay is liable to be condoned. Similarly, in case
of Rama Ravalu Gavade Vs. Sataba Gavadu Gavade (dead) through LRs
and another [(1997) 1 SCC 261), it is held that appellant an illiterate farmer,
his counsel should have advised him to take necessary steps due to failure to
render such advice, delay occasioned. Delay condoned invoking Maxims -
Ignorantia juris non excusat. Similarly, Allahabad High Court in case of
Hanuman Dass Vs. Pirhvi Nath and others (AIR 1956 Allahabad 677),
has held that sufficient cause should be so construed as to advance substantial
justice.
6. Thus, an application under Order 22 Rule 9 of the Code or under Section 5
of the Limitation Act, should not be dismissed on hyper technical ground, but if
just and proper cause is assigned, then such application should be allowed and
parties should be permitted to take a decision on merits rather on hyper
technicalities. When impugned order is tested on the touchstone of the
aforesaid judgment of Hon'ble Supreme Court, this Court does not find any
illegality in the impugned order calling for interference in the supervisory
jurisdiction of this Court.
6. Accordingly, this Miscellaneous Petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.17 19:24:54 IST
