Smt. Sumit Rani Jain (Since ... vs Daduram Patel
2023 Latest Caselaw 12168 MP

                                                       1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 1 st OF AUGUST, 2023
                                             MISC. APPEAL No. 807 of 2015

                           BETWEEN:-
                           SMT. SUMIT RANI JAIN W/O LATE PYARELAL JAIN,
                           AGED ABOUT 80 YEARS, RESIDENT OF HEERAGANJ,
                           GURUNANAK WARD, KATNI, TEHSIL AND DISTRICT
                           KATNI MP
                           (SINCE DECEASED) THROUGH LRS.
                           VIJAY KUMAR JAIN S/O LATE SHRI PYARELAL JAIN,
                           AGED ABOUT 50 YEARS, HEERAGANJ GURUNANAK
                           WARD KATNI TEHSIL AND DISTRICT KATNI (MADHYA
                           PRADESH)

                                                                             .....APPELLANT
                           (BY MS. SANJANA SAHNI - ADVOCATE )

                           AND
                           1.    DADURAM PATEL S/O SHRI RAM KHELAWAN
                                 PATEL,
                                 (SINCE DECEASED) THROUGH LRS:
                                 (a) SATYAM PATEL, S/O LATE DADURAM PATEL
                                 AGED 26 YEARS.

                                 (b)    VIJAY PATEL S/O LATE DADURAM PATEL
                                 AGED 23 YEARS

                                 (c)  SANJU PATEL, S/O LATE DADURAM PATEL,
                                 AGED 21 YEARS

                                 (d)   ROHIT PATEL S/O LATE DADURAM PATEL,
                                 AGED 19 YEARS
                                 ALL RESIDENTS OF KHIREHNI, RAFI AHMED
                                 KIDWAI WARD AHEAD OF PEEPAL TREE, TILAK
                                 COLLEGE ROAD KATNI TEHSIL AND DISTRICT
                                 KATNI MADHYA PRADESH

                           2.    ACHHELAL PATEL S/O LATE SHRI RAMADHEEN
                                 PATEL, AGED ABOUT 70 YEARS, KHIRAHNI RAFI
                                 AHMED KIDWAI WARD AHEAD OF PEEPAL TREE
                                 TILAK COLLAGE ROAD DISTT KATNI (MADHYA
                                 PRADESH)
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 03-08-2023
19:36:06
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                           3.    SMT SUNITA PATEL W/O SHRI DADURAM PATEL,
                                 AGED ABOUT 28 YEARS, KHIRAHNI, RAFI AHMED
                                 KIDWAI WARD AHEAD OF PEEPAL TREE, TILAK
                                 COLLEGE ROAD KATNI (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                           (BY SHRI AMIT KUMAR SHARMA - ADVOCATE)

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                                ORDER

This miscellaneous appeal is filed under Order 43 Rule 1 (k) of the Code of Civil Procedure, 1908 being aggrieved with the order dated 04.03.2015 passed by learned second Additional District Judge, Katni in Civil Suit No.67-

A/2012. Vide impugned order, learned second Additional District Judge has refused to allow an application under Order 22 Rule 9 of the CPC as a result of which the application under Order 22 Rule 2 of the CPC is dismissed.

Learned counsel for the appellant submits that the facts of the case are that Sumit Rani Jain had filed a suit through her one of the sons - Vijay Kumar Jain ((i.e. her power of attorney). Sumit Rani Jain admittedly died on 09.03.2013. According to Ms. Sanjana Sahni, period of ninety days as provided under Order 22 Rule 9 of the CPC came to an end on 09.06.2013 and thereafter further period of sixty days under Article 121 of the Limitation Act came to an end on 09.08.2013 whereas the application under Order 22 Rule 3 and Order 22 Rule 9 of the CPC as contained in Annexure A-3 was filed on 25.03.2014 and therefore, without resorting to the hyper-technicalities the trial Court should have allowed the application.

Ms. Sanjana Sahni has placed reliance on the judgment of a Coordinate Bench in Ramadhar Sharma v. Sewaram and others, reported in 1999 (2) MPLJ 461 and reading from paragraph 24 of the said judgment it is submitted Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 03-08-2023 19:36:06

that the Coordinate Bench placing reliance on the decision of Punjab High Court in Firm Kaura Mal v. Firm Mathra Dass, AIR 1959 Punjab 646 has held that in absence of a written application, relief cannot be denied. It is further mentioned in the said paragraph that Section 5 of the Limitation Act does not provide that an application in writing must be filed before relief under the said provision can be granted. While making the aforesaid observations, the Punjab High Court drew support from an earlier decision of the Allahabad High Court in the case of Mt. Kulsoomun Nissa v. Noor Mohammad, AIR 1936 All 666. Similarly reliance is placed on a decision of the Coordinate Bench in Sulochana Jain and Another v. Hetram and Others (MP No.3226 of 2023 decided on 23.06.2023) wherein the Coordinate Bench has held that the order passed by learned District Judge, Beohari, district - Shahdol condoning the delay in filing application under Order 22 Rule 3 of the CPC invoking provision of Section 5 of the Limitation Act being a technical mistake will not affect the order of the District Judge. Reliance is also placed on another decision of the Coordinate Bench in Naseema Begum v. Mohd. Rajik Nazmi 2019 SCC OnLine MP 2255 wherein it is held that the trial Court ought not to have adopted the hyper-technical approach and ought to have granted an opportunity to the applicants to file the application for condonation of delay and for setting aside abatement in the interest of justice. This judgment relies on another

judgment of Hon'ble the Supreme Court in Rama Ravalu Gawade v. Sataba Gavadu, (1997) 1SCC 261.

Shri Amit Kumar Sharma, learned counsel appearing for the respondents submits that the application filed by Vijay Kumar Jain under Order 22 Rule 3 read with Order 22 Rule 9 of the CPC is rightly dismissed by the trial Court

Signature Not Verified inasmuch as in view of the provisions contained in Order 22 Rule 3 of the CPC, Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 03-08-2023 19:36:06

all the legal heirs of late Shri Sumit Rani Jain were required to be brought on record. It is evident from the application under Order 22 Rule 3 of the CPC as was filed on 25.03.2014 that Vijay Kumar Jain sought only his substitution without disclosing the status of other legal heirs.

At this stage, Ms. Sanjana Sahni submits that the applicant Vijay Kumar Jain was claiming the relief on the basis of Will of the plaintiff Sumit Rani Jain but it is evident that details of such Will is not mentioned in the application nor copy of the said Will was enclosed along with the application.

It is evident from the application under Order 22 Rule 3 read with Order 22 Rule 9 of the CPC that Vijay Kumar Jain mentioned that he was informed by his counsel that the case was pending for presence of Manu Devi and in November, 2013 he had fallen sick and was sick till January, 2014. He was not in a position to move out as per advice of the doctor and then when he tried to contact his counsel on 20.03.2014, but he could not meet his counsel and then he contacted his counsel on 24.03.2014 in the court premises and then the application was filed. Neither any medical certificate was enclosed in support of the contention nor any other material was produced on record.

After hearing learned counsel for the parties and going through the record, if provision contained in Order 22 Rule 3 of the CPC is perused, it provides for procedure on death of one of several plaintiffs or of sole plaintiff. It is provided that if one of two or more plaintiffs dies, or a sole plaintiff or sole surviving plaintiff dies and right to sue survives, the Court, on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Sub rule (2) of Rule 3 of Order 22 provides that where within the time limited by law, no Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 03-08-2023 19:36:06

application is made under Sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

The limitation for filing an application under Order 22 Rule 3 of the CPC is ninety days as per Article 120 of the Limitation Act. Under Article 121 of the Limitation Act, sixty days time is provided for filing an application for setting aside of the abatement.

Order 22 Rule 9 of the CPC provides that where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. Sub-rule (2) of Rule 9 of Order 22 provides that the plaintiff or the person claiming to be legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order of setting aside abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. It is evident that the appellant is required to give and prove sufficient cause which prevented him from continuing the suit.

In the present case admittedly the appellant did not supply the adequate cause. He did not produce any medical document in support of his so called illness from November, 2013 to January, 2014. No reason has been supplied for not contacting his counsel after recovering from illness in January, 2014 till 20.03.2014. Moreover, there is another glitch i.e. no reason has been mentioned for not bringing all the legal heirs of late Sumit Rani Jain on record. Thus, it is evident that application under Order 22 Rule 9 of the CPC was not properly constituted. Sufficient reason as prescribed under Sub-rule (2) of Rule 9 of Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 03-08-2023 19:36:06

Order 22 was not supplied and when impugned order is tested in this light then it is not the ratio of the law that a negligent litigant can file an application under Order 22 Rule 3 read with Order 22 Rule 9 of the CPC to get away without bringing on record sufficient cause for condonation of delay. That is neither the spirit of law nor the ratio of law in the cases of Ramadhar Sharma (supra), Sulochana Jain (supra) or Naseema Begum (supra), the judgments on which counsel for the appellant has place reliance. It is only said that hyper- technicalities should not be resorted to. The delay can be condoned on an oral request inasmuch as there is no provision under Section 5 of the Limitation Act to necessarily make an application in writing. When tested on all these aspects then for the reasons: firstly, the application was not properly constituted to bring all the legal heirs of Sumit Rani Jain on record; secondly, it was not filed in time; and thirdly, for not giving proper and sufficient reasons supported by documents, the impugned order cannot be faulted with.

The appeal fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE ks

Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 03-08-2023 19:36:06