Madhya Pradesh High Court
Brijendra Prasad Dubey vs Shobhnath Mishra (Dead) Through ... on 28 August, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 28 th OF AUGUST, 2023
MISCELLANEOUS PETITION No. 5751 of 2022
BETWEEN:-
BRIJENDRA PRASAD DUBEY S/O JAGANATH DUBEY,
AGED ABOUT 62 YEARS, OCCUPATION: SERVICE
V I L L A G E JAINAGAR TAHSIL LAND DISTRICT
SINGRAULI M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI LAWKUSH PRASAD MISHRA - ADVOCATE)
AND
SHOBHNATH MISHRA (DEAD) THROUGH LRS.
JYOSTISH PRASAD MISHRA S/O LATE
1. SHOBHNATH MISHRA, AGED ABOUT 50 YEARS,
OCCUPATION: NIL R/O KHAJURI POST JARHAN
TAHSIL SINGRAULI DISTRICT SINGRAULI (M.P.)
(MADHYA PRADESH)
2. JITENDRA KUMAR MISHRA (DEAD) THROUGH
LRS.
2(A) SMT. RADHA DEVI KUNWAR W/O LATE SHRI
JITENDRA KUMAR MISHRA, AGED ABOUT 40
YEAR S, R/O VILLAGE JAINAGAR TAHSIL AND
DISTRICT SINGRAULI (MADHYA PRADESH)
2(B) RAJENDRA KUMAR @ BHIM SAGAR MISHRA S/O
LATE SHRI JITENDRA KUMAR MISHRA, AGED
ABOUT 23 YEARS, R/O VILLAGE JAINAGAR
TAHSIL AND DISTRICT SINGRAULI (MADHYA
PRADESH)
2(C) RAJESH KUMAR MISHRA S/O LATE SHRI
JITENDRA KUMAR MISHRA, AGED ABOUT 19
YEAR S, R/O VILLAGE JAINAGAR TAHSIL AND
DISTRICT SINGRAULI (MADHYA PRADESH)
2(D) KAUSHILYA @ SONAM MISHRA D/O LATE SHRI
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 28-08-2023
19:43:56
2
JITENDRA KUMAR MISHRA W/O VINOD DUBAI,
AGED ABOUT 21 YEARS, R/O JAITPUR NEAR
LAXMI MARKET POST JAYANT PS
VINDHYANAGAR DISTRICT SINGRAULI (MADHYA
PRADESH)
2(E) ARTI @ PUJA MISHRA D/O LATE SHRI JITENDRA
KUMAR MISHRA W/O OMPRAKASH PANDEY R/O
VILLAGE KATHURA POST JARHAN TAHSIL MADA
DISTRICT SINGRAULI (MADHYA PRADESH)
3. MANMATI D/O LATE SHRI SHOBHNATH MISHRA
W/O LATE SHRI JAICHAND PANDEY, AGED ABOUT
40 YEARS, R/O TAILGAVAN TAHSIL AND
DISTRICT SINGRAULI (MADHYA PRADESH)
4. VIJULIYADEVI (DEAD) THROUGH LRS.
4(A) SARANG DUBEY S/O SHRI RAMAWADH DUBEY
MOTHER LATE SMT. VIJULIYA DEVI, AGED
ABOUT 34 YEARS, R/O VILLAGE KUSHMAHRA
TAHSIL AND DISTRICT SINGRAULI (MADHYA
PRADESH)
4(B) DEEPAK DUBEY S/O SHRI RAMAWADH DUBEY
MOTHER LATE SMT. VIJULIYA DEVI, AGED
ABOUT 27 YEARS, R/O VILLAGE KUSHMAHRA
TAHSIL AND DISTRICT SINGRAULI (MADHYA
PRADESH)
4(C) GUDDI D/O SHRI RAMAWADH DUBEY MOTHER
LATE SMT. VIJULIYA DEVI, AGED ABOUT 40
YEARS, R/O VILLAGE KUSHMAHRA TAHSIL AND
DISTRICT SINGRAULI (MADHYA PRADESH)
4(D) BULLU S/O SHRI RAMAWADH DUBEY MOTHER
LATE SMT. VIJULIYA DEVI, AGED ABOUT 35
YEARS, R/O VILLAGE KUSHMAHRA TAHSIL AND
DISTRICT SINGRAULI (MADHYA PRADESH)
4(E) ASHA DEVI D/O SHRI RAMAWADH DUBEY
MOTHER LATE SMT. VIJULIYA DEVI, AGED
ABOUT 30 YEARS, R/O VILLAGE KUSHMAHRA
TAHSIL AND DISTRICT SINGRAULI (MADHYA
PRADESH)
5. INDRAMATI D/O LATE SHRI SHOBHNATH
MISHRA W/O SHRI DADAURAM PANDEY, AGED
ABOUT 40 YEARS, R/O KHAJURI TAHSIL AND
DISTRICT SINGRAULI (MADHYA PRADESH)
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 28-08-2023
19:43:56
3
6. LALPATI D/O LATE SHRI SHOBHNATH MISHRA
W/O SHRI DADERAM PANDEY, AGED ABOUT 38
YEAR S , R/O KHAJURI TAHSIL AND DISTRICT
SINGRAULI (MADHYA PRADESH)
7. STATE OF M.P. THROUGH COLLECTOR
S IN GR AULI DISTRICT SINGRAULI (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI JITENDRA SHRIVASTAVA - PANEL LAWYER FOR THE
RESPONDENT NO.7-STATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
This petition is filed by the plaintiff being aggrieved of the order dated
18.03.2021 (Annexure P-1) passed by the learned First Civil Judge, Junior
Division, Waidhan, District Singrauli in RCSA No.39/2015 and also order dated
11.11.2022 (Annexure P-2) passed by the learned Fourth Civil Judge, Senior
Division, Singrauli, refusing to entertain an application under Section 151, CPC
to review its earlier order.
It is submitted by Shri Lawkush Mishra, learned counsel for the petitioner
that petitioner-plaintiff is a heart patient. He could not appear in time because his
counsel had not given any intimation to him.
Shri Mishra has placed reliance on the judgment of the Bombay High
Court in case of Hariba Tatyaba More (Died) through LRs Vs. Dada
Ekhatnath More, 2019 (6) ABR 473, wherein it is held that suit dismissed
under Order 9, Rule 5(1), CPC can be restored in exercise of inherent powers if
sufficient cause is shown by the plaintiff. Previous conduct of plaintiff and
inconvenience cause to the defendant are also required to be considered before
exercising inherent powers.
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 28-08-2023
19:43:56
After hearing learned counsel for the parties and going through the
record, it is evident that no documents have been brought on record to show
that petitioner is a heart patient. There is no material on record to show that
petitioner or his Power of Attorney ever contacted the counsel to find out about
the progress of the suit. Therefore, when orders impugned are examined then
on face of record there is no illegality in the same but looking to the fact that
plaintiff's suit is against the defendant No.2 who is the main contesting party
and his legal heirs are necessary for adjudication of the lis, subject to payment
of cost of Rs.15,000/- (Rupees Fifteen Thousands only) in favour of the legal
heirs of the defendant No.2, it is directed that impugned orders are set aside.
Application for impleadment of legal heirs of the defendant No.2 already
filed by the petitioner-plaintiff is allowed. Plaintiff will serve the legal heirs of
the defendant No.2 by taking appropriate steps within a further period of three
days and thereafter, if trial is not already completed then the trial Court shall
make an endeavour to conclude the trial within a period of six months from the
date of receipt of certified copy of the order being passed today without
affording any adjournment in favour of the plaintiff on any ground.
It is made clear that payment of cost will be a pre-condition for allowing
the petitioner to proceed with the suit against the legal heirs of the defendant
No.2.
In view of above, this petition stands disposed of.
(VIVEK AGARWAL)
JUDGE
pp
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 28-08-2023
19:43:56
