Madhya Pradesh High Court
The State Of Madhya Pradesh vs Poonamchand Decd. Thr Lrs Harsh on 21 February, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 21st OF FEBRUARY, 2023
MISC. CIVIL CASE No. 2761 of 2022
BETWEEN:-
1. THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR RATLAM (MADHYA
PRADESH)
2. THE MANAGER COURTS OF WARDS AND
TEHSILDAR RATLAM (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI VAIBHAV BHAGWAT, G.A.)
AND
1. POONAMCHAND DECD. THR LRS HARSH
S/O PONAMCHAND LUNAWAT 24 CHANDNI
CHOWK RATLAM (MADHYA PRADESH)
2. POONAMCHAND DECD. THR LRS SADHNA
D/O POONAMCHAND LUNAWAT R/O 24
CHANDNI CHOWK RATLAM (MADHYA
PRADESH)
3. POONAMCHAND DECD. THR LRS ALKA D/O
POONAMCHAND LUNAWAT R/O 24
CHANDNI CHOWK RATLAM (MADHYA
PRADESH)
4. POONAMCHAND DECD. THR LRS MANJU
D/O POONAMCHAND LUNAWAT R/O 24
CHANDNI CHOWK RATLAM (MADHYA
PRADESH)
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 23-Feb-23
6:48:21 PM
2
5. POONAMCHAND DECD. THR LRS MONIKA
D/O POONAMCHAND LUNAWAT R/O 24
CHANDNI CHOWK RATLAM (MADHYA
PRADESH)
6. POONAMCHAND DECD. THR LRS MANILA
D/O POONAMCHAND LUNAWAT R/O 24
CHANDNI CHOWK RATLAM (MADHYA
PRADESH)
7. POONAMCHAND DECD. THR LRS ANITMA
D/O POONAMCHAND LUNAWAT R/O 24
CHANDNI CHOWK RATLAM (MADHYA
PRADESH)
8. POONAMCHAND DECD. THR LRS SANJAY
H/O SEEMA (DECEASED) D/O
POONAMCHAND LUNAWAT R/O 24
CHANDNI CHOWK RATLAM (MADHYA
PRADESH)
9. POONAMCHAND DECD. THR LRS SALONI
D/O SANJAY R/O 24 CHANDNI CHOWK
RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NITIN PHADKE, ADVOCATE FOR RESPONDENT No.1)
...............................................................................................................
This application coming on for orders this day, the court
passed the following:
ORDER
Heard on I.A. No.7522 of 2022 which is an application for
condonation of delay, as well as on admission.
2] This MCC has been filed under under Order 41 Rule 19 r/w
Section 151 of CPC for restoration of Second Appeal
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 23-Feb-23
6:48:21 PM
No.1420/2005, which has been dismissed vide order dated
13.12.2019, on account of a peremptory order dated 14.11.2019.
3] The Second Appeal No.1420/2005 was admitted on
08.03.2006. The case of the applicants/State Government is that in
the aforesaid appeal, the sole respondent Poonamchand died on
11.04.2019, the information regarding which, under Order 22 Rule
10-A of CPC was furnished by the counsel for the respondent on
01.07.2019 and thereafter, counsel for the appellants/State sought
time on 24.07.2019, 12.09.2019 and 15.10.2019 to file appropriate
application for setting aside the abatement. However, no such
application was filed by the State despite seeking various
adjournments. On 14.11.2019, a peremptory order was passed by
this Court directing the appellants to file the application within four
weeks' time, failing which, it was directed that the Registrar shall
pass the formal order of dismissal of the appeal, and subsequently,
as no such application for setting aside the abatement of appeal was
filed by the appellants, the Registrar, on 13.12.2019, has passed the
formal order of dismissal of the appeal and thereafter, on
16.11.2022, the MCC has been filed for restoration of the aforesaid
second appeal.
4] Counsel for the applicants has submitted that on 14.11.2019,
four weeks' time was granted, however, the applicants could not
trace out the legal representatives of the sole respondent, which led
to the dismissal of the appeal on 13.12.2019 and thereafter, from
15.03.2020 to 28.02.2022, the Court proceedings came to a halt on
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 23-Feb-23
6:48:21 PM
account of Covid-19 and after opening of the Court, it took some
time to the State to file the present application as the office of the
State Government was also in a considerable mess.
5] Counsel has also submitted that the applicants have shown
sufficient cause to condone the delay of 1069 days and after
deducting the Covid-19 period, there is a delay of only 446 days, it
cannot be said that the applicants were not diligent in pursuing the
matter. Counsel has also submitted that since the second appeal had
already been admitted way back in the year 2006, there was no
reason for the applicants not to argue the matter and not to bring the
legal representatives of the sole respondent on record.
6] In support of his submissions Shri Vaibhav Bhagwat, counsel
appearing for the applicants has also relied upon a decision rendered
by the Supreme Court in the case of Ram Nath Sao Alias Ram
Nath Sahu and Others Vs Gobardhan Sao and Others reported
as (2002) 3 SCC 195, paras 7 to 12.
7] Counsel appearing for the respondent, on the other hand, has
vehemently opposed the prayer and it is submitted that no due
diligence has been shown by the State Government in pursuing the
matter as ample opportunity was given to the applicants to file the
appropriate application for setting aside the abatement, but despite
various opportunities not only the application was not filed but even
the present MCC has been filed after a period of nine months from
28.02.2022, i.e., when the Courts again opened after Covid-
19.Thus, it is submitted that no case for interference is made out.
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 23-Feb-23
6:48:21 PM
8] Counsel has also relied upon decision rendered by the
Supreme Court in the case of Government of Maharashtra
(Water Resources Department) Represented by Executive
Engineer Vs. Borse Brothers Engineers and Contractors Private
Limited reported as (2021) 6 SCC 460, Balwant Singh (Dead)
Vs. Jagdish Singh & Ors. reported as AIR 2010 SC 3043 and
Amalendu Kumar Bera and Others Vs. State of W.B. reported as
2013 (3) M.P.L.J.
9] Heard counsel for the parties and perused the record.
10] From the record, the chronology which emerges is that:-
Second Appeal No.1420/2005 was admitted on 08.03.2006. In
the aforesaid appeal, the sole respondent Poonamchand died on
11.04.2019, the information regarding which, under Order 22
Rule 10-A of CPC was furnished by the counsel for the
respondent on 01.07.2019 and thereafter, counsel for the
appellants/State sought time on 24.07.2019, 12.09.2019 and
15.10.2019 to file appropriate application for setting aside the
abatement. However, no such application was filed by the State
despite seeking adjournments. On 14.11.2019, peremptory order
was passed by this Court. The Registrar, on 13.12.2019 passed
the formal order of dismissal of the appeal. The MCC has been
filed for restoration of the aforesaid second appeal on
16.11.2022.
11] A perusal of the aforesaid chronology clearly reveals that
there was indeed some delay on the part of the applicants to file the
application for restoration of the second appeal, however, it also
cannot be lost sight of that the second appeals in the High Courts
are decided after decades and in the meantime, either the appellant
passes away or the respondent. It is also apparent that in the present
case the appellant was the State Government and the sole
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Signed by: BAHAR CHAWLA
Signing time: 23-Feb-23
6:48:21 PM
respondent Poonamchand died on 11.04.2019, and thus, it is not
expected that the State Government, who is not a private party
would come to know about the legal representatives of the deceased
respondent immediately after filing of the application under Order
22 Rule 10-A of the CPC by the counsel for the respondent
informing the demise of respondent, and in such circumstances,
taking note of the fact that the Courts remained closed from
15.03.2020 to 28.02.2022 and only urgent matters were taken up,
the filing of the present application on 16.11.2022 after a delay of
around nine months cannot be said to be unreasonable.
12] In view of the same, this Court is inclined to allow the present
application. Accordingly, I.A. No.7522 of 2022 application for
condonation of delay is hereby allowed and the delay in filing the
MCC is hereby condoned.
13] Resultantly, the application itself under Order 41 Rule 19 of
CPC for restoring the Second Appeal No.1420/2005 is also allowed
and it is directed that the Second Appeal No.1420/2005 is restored
to its original number. Office is directed to list the same
accordingly.
14] The reliance placed on the decisions of Supreme Court in the
case of Government of Maharashtra (Water Resources
Department) Represented by Executive Engineer Vs. Borse
Brothers Engineers and Contractors Private Limited (supra),
Balwant Singh (Dead) Vs. Jagdish Singh & Ors. (supra) and
Amalendu Kumar Bera and Others Vs. State of W.B. (supra) by
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 23-Feb-23
6:48:21 PM
the counsel for the respondent No.1 are of no avail to the
respondent No.1 as these judgments are distinguishable on facts.
15] Counsel for the applicant is also directed to file appropriate
application for setting aside abatement and substituting the legal
representatives of the respondent within two weeks' time from the
date of its restoration, failing which this order shall stand cancelled
without further reference to the Court.
A copy of this order be kept in the record of SA No.1420 of
2005.
C. c. as per rules.
(SUBODH ABHYANKAR)
JUDGE
Bahar
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 23-Feb-23
6:48:21 PM
