The State Of Madhya Pradesh vs Deceased Teju @ Tejmal Thr. Lrs. ...
2023 Latest Caselaw 4553 MP

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      IN THE HIGH COURT OF MADHYA PRADESH
                      AT I N D O R E
                          BEFORE
             HON'BLE SHRI JUSTICE VIVEK RUSIA
                  ON THE 23rd MARCH, 2023
               REVIEW PETITION No. 569 of 2021

BETWEEN:-
   THE STATE OF MADHYA PRADESH THR.
1. COLLECTOR, COLLECTOR OFFICE, DISTRICT
   RATLAM (MADHYA PRADESH)
     TEHSILDAR, NAJOOL,   DISTRICT   RATLAM
2.
     (MADHYA PRADESH)
                                              .....PETITIONERS
(SHRI UMESH GAJANKUSH, LEARNED ADDITIONAL ADVOCATE GENERAL
FOR THE PETITIONERS / STATE.)

AND
     LATE TEJU @ TEJMAL THROUGH LEGAL
     HEIRS :-
   SAPNA D/O LATE TEJU, W/O MOHANLAL AGED
   ABOUT 35 YEARS, R/O BAGROD, DHAKAD
1.
   MOHALLA, DISTRICT RATLAM (MADHYA
   PRADESH)
   MANJU D/O LATE TEJU W/O DINESH, AGED
   ABOUT 32 YEARS, R/O BAGROD, DHAKAD
2.
   MOHALLA, DISTRICT RATLAM (MADHYA
   PRADESH)
     PINKY D/O   TEJU   W/O  DINESH,  R/O
3.
     TATANAGAR RATLAM. (MADHYA PRADESH)
   TINA W/O TEJU, AGED ABOUT 26 YEARS, R/O
4. GAUSHALA ROAD, PATEL COLONY, RATLAM
   (MADHYA PRADESH)

5. POOJA D/O LATE TEJU, AGED ABOUT 20
   YEARS, R/O GAUSHALA ROAD, PATEL COLONY,
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     RATLAM (MADHYA PRADESH)
   MONIKA D/O TEJU, AGED ABOUT 19 YEARS,
6. R/O GAUSHALA ROAD, PATEL COLONY,
   RATLAM (MADHYA PRADESH)
   SONIYA W/O TEJU, AGED ABOUT 18 YEARS, R/O
7. GAUSHALA ROAD, PATEL COLONY, RATLAM
   (MADHYA PRADESH)
   RAVI S/O LATE TEJU, AGED ABOUT 15 YEARS,
8. R/O GAUSHALA ROAD, PATEL COLONY,
   RATLAM (MADHYA PRADESH)
     RAHUL S/O LATE TEJU R/O GAUSHALA ROAD,
9.
     PATEL COLONY, RATLAM (MADHYA PRADESH)
    AANIYA D/O LATE TEJU, AGED ABOUT 13
10. YEARS, R/O GAUSHALA ROAD, PATEL
    COLONY, RATLAM (MADHYA PRADESH)
    BHAGIRATH S/O MANIRAMJI GAWALI, AGED
    ABOUT    58     YEARS,    OCCUPATION:
11.
    PASHUPALAN, R/O NAYA BAJANA BUS STAND
    RATLAM (MADHYA PRADESH)
    [email protected] W/O BHAGIRATHJI
    GAWLI, AGED ABOUT 56 YEARS, R/O NAYA
12.
    BAJANA BUS STAND RATLAM. (MADHYA
    PRADESH)
    SHANKARLAL S/O MANIRAMJI GAWALI, R/O
13. NAYA BAJANA BUS STAND RATLAM. (MADHYA
    PRADESH)
    LAKSHMIBAI W/O SHANKARLAL JI GAWALI,
14. AGED ABOUT 53 YEARS, R/O NAYA BAJANA
    BUS STAND, RATLAM (MADHYA PRADESH)
                                                                             .....RESPONDENTS
(SHRI VEER KUMAR JAIN, LEARNED SENIOR ADVOCATE ALONG WITH
SHRI YASWARDHAN TIWARI, LEARNED COUNSEL FOR THE
RESPONDENT.)
        Reserved on                :        22.02.2023
        Delivered on               :        23.03.2023
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      This petition coming on for orders this day, the court passed the

following:

                                 ORDER

The present review petition is filed seeking a review of the order dated 19.06.2020 passed in MCC No.1421/2019 whereby the application for condonation of delay has been rejected and consequently the MCC filed for restoration of Second Appeal No.217/2004 has also been dismissed.

The facts of the case in short are as under:

[1] The original plaintiff [email protected] filed the civil suit for declaration and permanent injunction against the State Government, vide judgment and decree dated 03.12.2001 the suit was decreed in favour of the plaintiff by declaring him owner and occupier of survey No.626 area 4 Beegha, 14 Biswa (101050 sq.ft.) situated in ward No.7 near Amrit Sagar Talab, Ratlam. Being aggrieved by the aforesaid judgment and decree the State of M.P. filed First Appeal No.5-A/2003, vide judgment dated 16.10.2003 First Additional District Judge, Fast Track, Ratlam dismissed the appeal.

[2] Being aggrieved by the aforesaid dismissal of the appeal, the State of M.P. filed the Second Appeal No.217/2004 before this Court. Vide order dated 01.07.2004, the appeal was admitted on the sole question of law which is as under :

"Have the courts below erred in holding that the respondent acquired rights of ownership on the grounds that he has been using the suit land for

brickkiln and has been paying license fee to Municipal Corporation, Ratlam who has to manage the government land situate within the corporation area and that there had been no entry of the suit land being Nazul land in the revenue records."

[3] During the pendency of the appeal original plaintiff expired on 30.03.2017, the legal heirs of the plaintiff filed an application being I.A. No.2941/2017 on 04.05.2017 informing about the death. Since no steps were taken by the State of M.P. / appellant for bringing the legal heirs on record, therefore, vide order dated 12.12.2018 second appeal was dismissed as abated. The aforesaid order is reproduced below:

Learned counsel for the respondent has pointed out that the sole respondent had died on 30.3.2017 and the intimation in this regard was given by filing an application being IA No.2941/2017 dated 4.5.2017, yet no steps have been taken to bring the LR of the decease sole respondent on record. He has submitted that in view of the judgment of the Supreme Court in the matter of Union of India Vs. Ram Charan reported in AIR 1964 SC 215 the appeal automatically abates on expiry of the statutory period in not filing the application for substitution. Same is the view taken by the Supreme Court subsequently in the matter of Gurnam Singh and others Vs. Gurbachan Kaur and others reported in 2017(2) JLJ 166 (SC).

Having regard to the aforesaid, the appeal has abated by operation of law, hence it is dismissed as abated.

[4] The State of M.P. filed an application under Order 22 Rule 9 CPC, an application for condonation of delay and an application under Order 22, Rule 4 CPC which was registered as MCC No.1424/2019. The aforesaid applications were opposed by the legal heirs of the plaintiff and vide order dated 19.06.2020 this Court has declined to condone the

delay of 668 days, the MCC filed for restoration has been dismissed. Now, the present review petition is being filed after the delay of 403 days but the benefit of Covid relaxation in light of the Supreme Court judgment dated 27.04.2021 has been granted hence, this review is within time.

[5] Shri Umesh Gajankush, learned Additional Advocate General for the petitioners submitted that the reasons for non-condoning the delay which is given in the order dated 19.06.2020 (passed in M.C.C.) are contrary to the facts of the case, at the relevant time, the concerned officers were on transfer from one office to another between the period from 04.05.2017 to 12.12.2018, therefore, the application for bringing legal heirs could not be filed in time. It is further submitted that the brother of the original plaintiff Teju also filed an application on 23.06.2018 seeking his impleadment as a respondent/defendant in the second appeal. The State sought time on 25.07.2018, 19.09.2018 and 10.10.2018 for filing a reply, therefore, the application could not be filed and the Court has dismissed the appeal as abated. [6] Now, the legal heirs are being represented in MCC as well as in this review petition, therefore, the appeal be restored for its adjudication on merit as a big chunk of Government land situated within the city of Ratlam has wrongly been declared in the ownership of the plaintiff. [7] Per contra, Shri V.K. Jain, learned Senior Counsel appearing on behalf of respondent No.1 to 10 contended that the State Government has failed to make out any case for review of the order dated 19.06.2020 passed in MCC, as not a single document was filed in MCC as well as review explaining the delay in filing the MCC, therefore, this Court

rightly declined to condone the delay, there is no mistake apparent on the face of the record and this review is liable to be dismissed with cost. In support of his contention he has placed reliance on a judgment passed by the Apex Court in the case of State of Madhya Pradesh and another v/s Chaitram Maywade reported in (2020) 10 SCC 667 whereby the conduct of the State in filing the SLP with the delay has not only been condoned but a cost of Rs.35,000/- has been directed to be deposited.

I have heard learned counsels for both parties.

[8] So far as the present case is concerned, the act of the applicant State remained lethargic from the beginning. When the legal heirs of the sole plaintiff filed an application under Order 22, Rule 10A CPC informing about the death, no steps were taken for filing legal heirs for one and a half years, therefore, this Court had no option but to declare Second Appeal abated and dismissed. Thereafter, no application for restoration of the second appeal was filed rather three applications were filed under Order 22 Rule 4 CPC and Section 5 of the Limitation Act which were registered independently as M.C.C.

[9] This Court has rightly declined to condone the delay, because the only ground which was taken that the concerned officers were repeatedly on transfer, the State has filed as many as 36 documents in respect of the work allocation between the Additional Collector and Joint Collector, some of the orders are filed in respect of transfer but who was responsible for not taking any steps for filing an appropriate application or for bringing legal heirs on record, the entire application is silent. There is no explanation on the part of the State as to why the appropriate application was not filed by OIC their averment in the

applications is very vague in nature. By filing a bunch of documents ipso facto cannot explain the delay, the State has contested the matter very carelessly because of which the Government has lost a large area of the land. In view of the order passed by the Apex Court in the case of State of M.P. and another v/s Chaitram Maywade (supra) and the scope of review and this present review petition is beyond the provisions of Order 47 Rule 1 CPC as there is no mistake apparent on the face of the record.

In view of the above, Review Petition is dismissed.

(VIVEK RUSIA) JUDGE Divyansh

DIVYANSH Digitally signed by DIVYANSH SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=3380667de97d13d32c7e38c6cdf101ad505b2b9a1a80f

SHUKLA 179678aa56e1b2c1b5c, postalCode=452001, st=Madhya Pradesh, serialNumber=538643475F0C03D17250F81A886031507031015 30C81C7D5C31D2D096B40693F, cn=DIVYANSH SHUKLA Date: 2023.03.24 14:14:59 +05'30'