Ranglal (Deceased) Through Lrs ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 13546 MP

                                                       1
                            IN    THE    HIGH COURT OF MADHYA PRADESH
                                               AT INDORE
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE PRANAY VERMA
                                            ON THE 21 st OF AUGUST, 2023
                                           SECOND APPEAL No. 2929 of 2022

                           BETWEEN:-
                           1.    RANGLAL (DECEASED) THROUGH LRS SARJU BAI
                                 W/O RANGLAL KACHHI, R/O: GRAM ANDALHEDA
                                 TEHSIL NARSINGHGARH, DISTRICT RAJGARH
                                 (MADHYA PRADESH)

                           2.    RANGLAL (DECEASED) THROUGH LRS KALURAM
                                 S/O LATE RANGLAL KACHHI ,      R/O: GRAM
                                 ANDALHEDA,     TEHSIL     NARSINGHGARH,
                                 DISTRICT RAJGARH (MADHYA PRADESH)

                           3.    RANGLAL     (DECEASED)  THROUGH     LRS
                                 MAKHANLAL S/O LATE RANGLAL KACHHI , R/O:
                                 GRAM ANDALHEDA, TEHSIL NARSINGHGARH,
                                 DISTRICT RAJGARH (MADHYA PRADESH)

                           4.    RANGLAL (DECEASED) THROUGH LRS GOVIND
                                 S/O LATE RANGLAL KACHHI ,      R/O: GRAM
                                 ANDALHEDA,     TEHSIL     NARSINGHGARH,
                                 DISTRICT RAJGARH (MADHYA PRADESH)

                           5.    RANGLAL (DECEASED) THROUGH LRS SANTOSH
                                 S/O LATE RANGLAL KACHHI ,      R/O: GRAM
                                 ANDALHEDA,     TEHSIL     NARSINGHGARH,
                                 DISTRICT RAJGARH (MADHYA PRADESH)

                                                                            .....APPELLANTS
                           (BY SHRI HIMANSHU JOSHI - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH COLLECTOR /
                                 DISTRICT MAGISTRATE DISTRICT RAJGARH
                                 (MADHYA PRADESH)

                           2.    ANUVIBHAGHEEYA    ADHIKARI    (RAJASVA)
                                 NARSINGHGARH, DISTRICT RAJGARH (MADHYA
                                 PRADESH)

Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 22-08-2023
16:42:44
                                                           2
                           3.    T E H S I L D A R NARSINGHGARH,            DISTRICT
                                 RAJGARH (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                           (BY SHRI RAJWARDHAN GAWDE - GOVERNMENT ADVOCATE)

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

This appeal under Section 100 of the CPC has been preferred by the legal representatives of the deceased plaintiff being aggrieved by the judgment and decree dated 17.10.2022 passed in Civil Appeal No.41/2019 by the First Additional District Judge, Narsinghgarh, District Rajgarh, whereby the

application preferred by them for their substitution in place of deceased plaintiff has been rejected consequent upon rejection of an application under Section 5 of the Limitation Act and the appeal has been dismissed as having abated.

2. From the record, it is seen that the judgment and decree was passed by the trial Court on 20.11.2019. Being aggrieved by the same an appeal under Section 96 of the CPC was preferred by plaintiff before the lower appellate Court within time on 04.12.2019. During pendency of the appeal, the sole plaintiff/appellant expired on 05.01.2021. On 10.11.2021, an application under Order 22 Rule 3 of the CPC was filed by his legal representatives for their substitution in his place alongwith an application under Section 5 of the Limitation Act for condonation of delay in filing the substitution application. The lower appellate Court has held that no explanation has been given as regards the period from 05.01.2021 upto 09.04.2021 and further from 30.09.2021 upto date of filing of the application on 10.11.2021. In consequence it has rejected both the applications and has dismissed the appeal as having abated.

Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 22-08-2023 16:42:44

3. By order dated 21.08.2023 the appeal has been admitted on the following substantial question of law:-

"Whether the lower appellate Court has erred in dismissing the application under Order 22 Rule 3 of the CPC filed before it for substitution of legal representatives of deceased sole appellant in utter violation of the order dated 10.01.2022 passed by the Supreme Court in suo moto Writ Petition (C) No.3 of 2020.?"

4. The Supreme Court in the matter of suo-moto Writ Petition (C) No.3 of 2020, in RE:Cognizance for extension of limitation by order dated 10.01.2020 has specifically directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quacy judicial proceedings.

5. In the present case, the death of sole plaintiff/appellant occurred in between the aforesaid period and the application for substitution was also filed during that period itself. As per order of the Supreme Court, the period of limitation for filing all applications as the one which had been filed before the lower appellate Court had been suspended hence there was no question of limitation in filing of the application for substitution which ought to have been treated to be within time. The application under Section 5 of the Limitation Act which was filed alongwith the substitution application was superfluous. In view of the order passed by the Supreme Court, the application preferred by the legal

representatives of plaintiff/appellant was within time and has been erroneously rejected by the lower appellate Court. It is not a finding that the proposed legal representatives are not the legal representatives of the deceased plaintiff/appellant.

6. Thus in view of the aforesaid, the substantial question of law as framed is answered in favour of the appellants. Consequently, the judgment and decree Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 22-08-2023 16:42:44

passed by the lower appellate Court is set aside. The application under Order 22 Rule 3 of the CPC filed by the present appellants before the lower appellate Court stands allowed. The matter is remanded back to the lower appellate Court for decision in accordance with law. The appeal is accordingly allowed.

No costs.

(PRANAY VERMA) JUDGE Shilpa

Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 22-08-2023 16:42:44