Madhya Pradesh High Court
Shambhu Yadav vs Smt. Uma Devi on 18 January, 2023
Author: Maninder S. Bhatti
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 18 th OF JANUARY, 2023
MISC. PETITION No. 811 of 2021
BETWEEN:-
SHAMBHU YADAV S/O LATE TEJA YADAV, AGED ABOUT
58 YEARS, OCCUPATION: AGRICULTURIST SIDDHARTH
NAGAR WARD NO.9 DISTT. SATNA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AJAY PAL SINGH - ADVOCATE )
AND
1. SMT. UMA DEVI W/O LATE HANUMAN PRASAD
YADAV, AGED ABOUT 60 YEARS, KOLGAON WARD
NO.8 DISTT. SATNA (MADHYA PRADESH)
2. MUNNILAL S/O LATE HANUMAN PRASAD YADAV,
AGED ABOUT 42 YEARS, OCCUPATION: NOT
MENTION GODWA TOLA, NEAR BYPASS,
DISTRICT REWA (MADHYA PRADESH)
3. SUNDARAM S/O LATE HANUMAN PRASAD
YADAV, AGED ABOUT 35 YEARS, OCCUPATION:
NOT MENTION GODWA TOLA, NEAR BYPASS,
DISTRICT REWA (MADHYA PRADESH)
4. RAMESHWARAM S/O LATE HANUMAN PRASAD
YADAV, AGED ABOUT 30 YEARS, OCCUPATION:
NOT MENTION GODWA TOLA, NEAR BYPASS,
DISTRICT REWA (MADHYA PRADESH)
5. SATYAMA S/O LATE HANUMAN PRASAD YADAV,
AGED ABOUT 28 YEARS, OCCUPATION: NOT
MENTION GODWA TOLA, NEAR BYPASS,
DISTRICT REWA (MADHYA PRADESH)
6. MOHANLAL (DEAD) THROUGH LRS. RAMKALI
W/O LATE MOHANLAL YADAV, AGED ABOUT 65
YEARS, OCCUPATION: NOT MENTION VILLAGE
KOLGAWAN, DISTT. SATNA (MADHYA PRADESH)
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/23/2023
6:44:10 PM
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7. MOHANLAL (DEAD) THROUGH LRS. RAMKALI
W/O LATE MOHANLAL YADAV, AGED ABOUT 65
YEARS, OCCUPATION: NOT MENTION VILLAGE
KOLGAWAN, DISTT. SATNA (MADHYA PRADESH)
8. JAIPRAKASH YADAV S/O LATE MOHANLAL
YADAV, AGED ABOUT 18 YEARS, OCCUPATION:
NOT MENTION GODWA TOLA, NEAR BYPASS,
DISTRICT REWA (MADHYA PRADESH)
9. DEEPAK YADAV S/O LATE MOHANLAL YADAV,
AGED ABOUT 38 YEARS, OCCUPATION: NOT
MENTION GODWA TOLA, NEAR BYPASS,
DISTRICT REWA (MADHYA PRADESH)
10. MEENA YADAV D/O LATE MOHANLAL YADAV,
AGED ABOUT 34 YEARS, OCCUPATION: NOT
MENTION GODWA TOLA, NEAR BYPASS,
DISTRICT REWA (MADHYA PRADESH)
11. RAMPRASAD S/O LATE BUDWA, AGED ABOUT 65
Y E A R S , OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
12. BUTTI DEVI W/O LATE RAMDEEN YADAV, AGED
ABOUT 60 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
13. INDRA D/O LATE RAMDEEN YADAV, AGED
ABOUT 42 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
14. KALA D/O LATE RAMDEEN YADAV, AGED ABOUT
40 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
15. RAMPRAKASH S/O LATE RAMDEEN YADAV,
AGED ABOUT 35 YEARS, OCCUPATION: NOT
MENTION SIDDHARTH NAGAR, WARD NO. 9,
DISTT. SATNA, (MADHYA PRADESH)
16. CHUNNIDEVI W/O LATE SURAJ PRASAD YADAV,
AGED ABOUT 50 YEARS, OCCUPATION: NOT
MENTION SIDDHARTH NAGAR, WARD NO. 9,
DISTT. SATNA, (MADHYA PRADESH)
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/23/2023
6:44:10 PM
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17. RAKHI D/O LATE SURAJ PRASAD YADAV, AGED
ABOUT 28 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
18. EKTA D/O LATE SURAJ PRASAD YADAV, AGED
ABOUT 23 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
19. TEJA YADAV (DEAD) THROUGH LRS. RAJNI
YADAV W/O JUGAL KISHORE YADAV, AGED
ABOUT 45 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
20. NEHA YADAV D/O JUGAL KISHORE YADAV, AGED
ABOUT 21 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
21. SAINI YADAV S/O JUGAL KISHORE YADAV, AGED
ABOUT 19 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
22. GEETA YADAV D/O LATE TEJA YADAV W/O VIJAY
YADAV, AGED ABOUT 50 YEARS, OCCUPATION:
NOT MENTION SONI MOHALLA, SIDDHARTH
NAGAR, DISTT. SATNA (MADHYA PRADESH)
23. SUNITA YADAV D/O LATE TEJA YADAV W/O
VINEET YADAV, AGED ABOUT 45 YEARS,
OCCUPATION: NOT MENTION ADHARTAL
JABALPUR (MADHYA PRADESH)
24. PUSHPENDRA YADAV S/O VINEET YADAV, AGED
ABOUT 45 YEARS, OCCUPATION: NOT MENTION
ADHARTAL JABALPUR, (MADHYA PRADESH)
25. KAMLA YADAV W/O LATE TEJA YADAV, AGED
ABOUT 65 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
26. SANTRAM YADAV S/O LATE TEJA YADAV, AGED
ABOUT 36 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/23/2023
6:44:10 PM
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27. RANI YADAV D/O LATE TEJA YADAV W/O RAJA
YADAV, AGED ABOUT 29 YEARS, OCCUPATION:
NOT MENTION SIDDHARTH NAGAR, WARD NO. 9,
DISTT. SATNA, (MADHYA PRADESH)
28. SURAJ YADAV S/O LATE TEJA YADAV, AGED
ABOUT 22 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
29. SHEELA YADAV D/O LATE TEJA YADAV, AGED
ABOUT 20 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
30. VINOD YADAV S/O LATE TEJA YADAV, AGED
ABOUT 15 YEARS, OCCUPATION: NOT MENTION
SIDDHARTH NAGAR, WARD NO. 9, DISTT. SATNA,
(MADHYA PRADESH)
31. THE STATE OF M.P. THROUGH COLLECTOR
SATNA DISTT. SATNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DHIRESH SINGH DUBEY - ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed this petition assailing the order dated 25.01.2021
contained in Annexure P/5 by which, a written statement submitted by the
petitioner has been refused to be taken on record.
2. Learned counsel for the petitioner contends that plaintiff/respondents
have filed a suit for declaration, partition and permanent injunction before the
Trial Court. In the said suit, the father of the present petitioner Late Teja Yadav
was impleaded as defendant No.10. The father of the petitioner died during
pendency of the suit and during pendency of suit itself his right to file written
statement was closed by the trial Court. After the death of the defendant No.10
Teja Yadav, his legal representatives were brought on record including the
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Signed by: SAVITRI PATEL
Signing time: 1/23/2023
6:44:10 PM
present petitioners. After impleadment of the legal representatives, they filed a
written statement before the Court. The filing of said written statement was
objected by the plaintiff/respondents on the ground that as the right to file
written statement of Late Teja Yadav (defendant No.10) was already closed by
the trial court, hence his legal representatives could not have filed any written
statement. The objection submitted by the plaintiff/respondents was entertained
by the trial court and accordingly, trial court observed that the legal
representatives of the defendant No.10 i.e. Late Teja Yadav cannot be allowed
to file written statement.
3. Learned counsel for the petitioner further contends that the impugned
order passed by the trial court goes contrary to the provisions of Order 22 Rule
4 (2) of C.P.C. It is contended by the counsel that if any person is made a party
in terms of the provisions of Order 22 Rule 4 of C.P.C., he may make any
defence appropriate to his character as legal representative of the deceased.
Therefore, in the light of the said provisions, the written statement was filed by
the legal representatives of the deceased/defendant No.10 Late Teja Yadav and
the same could not have been discarded by the trial court. Therefore, counsel
submits that the impugned order deserves to be quashed as the same goes
contrary to the Order 22 Rule 4 (2) of C.P.C.
4. Per contra, learned counsel for the respondents/plaintiff submits that
in the present case, the right to file written statement which was afforded to
original defendant No.10 Late Teja Yadav was already closed on 16.03.2017
and the deceased/defendant No.10 Late Teja Yadav did not make any effort to
seek recalling of the order dated 16.03.2017 and accordingly, the same attained
finality. It is contended by the counsel that as the legal representatives stepped
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in the shoes of Late Teja Yadav, accordingly they were also bound by the
Signed by: SAVITRI PATEL
Signing time: 1/23/2023
6:44:10 PM
earlier order dated 16.03.2017 by which, right to file written statement was
closed in respect of defendant No.10 Late Teja Yadav. Thus, while placing
reliance upon the decision of High Court of Chhatisgarh in the case of
Nankidai and others vs. Vijay Lal and others in S.A.No. 377/2012 passed
on 14.06.2022 submits that no interference is warranted in the present case.
5. Heard the rival submissions of both the parties and perused the
record.
6. In the present case, in order to deal with the controversy, it is first
apposite to refer to the provision of Order 22 Rule 4 (1) and (2) of C.P.C.,
which is reproduced as under:-
"4. Procedure in case of death of one of several defendants or of sole
defendant.- (1) Where one of the two or more defendants dies and the
right to sue does not survive against the surviving defendant or defendants
alone, or a sole defendant or sole surviving defendant dies and the right to
sue survives, the court, on an application made in that behalf, shall cause
the legal representative of the deceased defendant to be made a party and
shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his
character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-
rule (1), the suit shall abate as against the deceased defendant.
(4)The court whenever it thinks fit, may exempt the plaintiff from the
necessity of substituting the legal representatives of any such defendant
who has failed to file a written statement or who, having filed it, has failed
to appear and contest the suit at the hearing; and judgment may, in such
case, be pronounced against the said defendant notwithstanding the death
of such defendant and shall have the same force and effect as if it has been
pronounced before death took place.
(5) Where,-
(a) the plaintiff was ignorant of the death of a defendant, and
could not, for that reason, make an application for the
substitution of the legal representative of the defendant under
this rule within the period specified in the Limitation Act, 1963
(36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified
there for in the Limitation Act, 1963 (36 of 1963), for setting
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Signing time: 1/23/2023
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aside the abatement and also for the admission of that
application under section 5 of that Act on the ground that he
had, by reason of such ignorance, sufficient cause for not
making the application within the period specified in the said
Act,
the court shall, in considering the application under the said section 5,
have due regard to the fact of such ignorance, if proved."
(emphasis supplied)
7. A perusal of Order 22 Rule 4 (2) of C.P.C. reflects that the legal
representative who are brought on record, get right to submit a defence which is
appropriate to their character as legal representative of the deceased/defendant.
Thus, the right to file written statement accrues in favour of the legal
representatives upon their impleadment in the case, by virtue of Order 22 Rule 4
(1) of C.P.C. Order 22 Rule 4 (2) of C.P.C. or any other provisions of Order
22 does not bar filing of a written statement by the legal representative of the
deceased, even if the right to file written statement as regards the
deceased/defendant has been closed. Moreover, the right to file the defence
accrues in favour of the legal representatives when they are made party and
hence, it cannot be said that if the right to file written statement in respect of the
deceased/defendant is closed, his legal representatives also cannot file any
return.
8. The reliance as placed by the learned counsel for the
respondents/plaintiff on the decision of High Court of Chhatisgarh in
Nankidai (supra) is misplaced inasmuch as, the High Court of Chhatisgarh
while referring to the decision of the High Court of Rajasthan in Rameshwer
Prasad vs. Pratap Singh observed that the legal representatives are bound by
the pleading of their predecessor and they cannot set up a new or individual
right. It was further observed that there should not be any inconsistent plea
contrary to one already taken up by the deceased party.
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/23/2023
6:44:10 PM
9. In the present case, undisputedly the deceased/defendant No.10 did
not submit any written statement, therefore, there was no question of
submission of any inconsistent pleading, hence, such an eventuality was not
available in the present case. In the present case, the legal representatives of
deceased/defendant No.10 Late Teja Yadav have filed their written statement
upon their impleadment as legal representatives after the death of the
deceased/defendant No.10 Late Teja Yadav. Hence, their written statement
ought to have been taken on record in terms of provisions of Order 22 Rule 4
(2) of C.P.C.
10. Accordingly, the impugned order dated 25.01.2021 (Annexure P/5)
so far as it relates to non-acceptance of written statement filed by the legal
representatives of deceased/defendant No.10, is set-aside.
11. The trial court is directed to take the said written statement on record
and proceed to decide the suit in accordance of law, preferably within a period
of one year inasmuch as, the suit in question was filed somewhere in year 2014.
12. Accordingly, the present petition stands allowed.
C.c. as per rules.
(MANINDER S. BHATTI)
JUDGE
sp
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/23/2023
6:44:10 PM
