Madhya Pradesh High Court
Smt. Dhanwanti Devi W/O Late Sarnam Das ... vs Ramadhar on 21 November, 2023
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 21 st OF NOVEMBER, 2023
MISC. PETITION No. 1291 of 2022
BETWEEN:-
1. SMT. DHANWANTI DEVI W/O LATE SARNAM DAS
SHAH (DIED) THR. LRS GENA DEVI D/O LATE
SARNAM DAS SHAH W/O TEJLAL SHAH, AGED
ABOUT 70 YEARS, OCCUPATION: HOUSEWIFE
KHATKHARI, TEHSIL AND DISTRICT SINGROULI
(MADHYA PRADESH)
2. SAVITRI DEVI D/O LATE SARNAM DAS SHAH
OCCUPATION: HOUSEWIFE W/O LATE
RAMADHEEN SHAH R/O SUHIS R/O KHATKHARI
TEHSIL AND DISTRICT SINGROULI M.P.
(MADHYA PRADESH)
3. RAMMILAN S/O LATE SARNAM DAS SHAH, AGED
ABOUT 42 YEARS, OCCUPATION: FARMER R/O
KHATKHAR I R/O KHATKHARI TEHSIL AND
DISTRICT SINGROULI M.P. (MADHYA PRADESH)
4. DEVDUTT SHAH S/O LATE SARNAM DAS SHAH,
AGED ABOUT 40 YEARS, OCCUPATION: FARMER
R/O JARHAR/O KHATKHARI TEHSIL AND
DISTRICT SINGROULI M.P (MADHYA PRADESH)
5. UMADEVI D/O LATE SARNAM DAS SHAH
OCCUPATION: FARMER W/O KASHI PRASAD R/O
GAHILGARH R/O KHATKHARI TEHSIL AND
DISTRICT SINGROULI M.P. (MADHYA PRADESH)
6. DEVVRAT SHAH S/O LATE SARNAM DAS SHAH,
AGED ABOUT 34 YEARS, OCCUPATION: FARMER
R/O KHATKHARI TEHSIL AND DISTRICT
SINGROULI M.P (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANIRUDDH PRASAD SHAH- ADVOCATE)
AND
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 11/24/2023
1:16:59 PM
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1. RAMADHAR S/O LATE SARJU SAHU, AGED ABOUT
38 YEARS, OCCUPATION: FARMER VILLAGE
KHATKHARI, (MADHYA PRADESH)
2. SHYAMLAL S/O LATE DADU SAHU, AGED ABOUT
45 YEARS, OCCUPATION: FARMER R/O VILLAGE
KHATKHARI TEHSIL SINGRAULI P.S. WAIDHAN
DISTRICT SINGRAULI M.P. (MADHYA PRADESH)
3. SHESHMAN S/O LATE DADU SAHU, AGED ABOUT
45 YEARS, OCCUPATION: FARMER R/O VILLAGE
KHATKHARI TEHSIL SINGRAULI P.S. WAIDHAN
DISTRICT SINGRAULI M.P. (MADHYA PRADESH)
4. RAMLALLU S/O LATE DADU SAHU, AGED ABOUT
45 YEARS, OCCUPATION: FARMER R/O VILLAGE
KHATKHARI TEHSIL SINGRAULI P.S. WAIDHAN
DISTRICT SINGRAULI M.P. (MADHYA PRADESH)
5. KAITURIYA D/O LATE DADU SAHU W/O SHRI
RAMNARAYAN SAHU, AGED ABOUT 40 YEARS,
R/O VILLAGE KHATKHARI TEHSIL SINGRAULI
P.S. WAIDHAN DISTRICT SINGRAULI M.P.
(MADHYA PRADESH)
6. CHHOTI W/O GOVIND SAHU, AGED ABOUT 55
YE A R S , R/O VILLAGE KHATKHARI TEHSIL
SINGRAULI P.S. WAIDHAN DISTRICT SINGRAULI
M.P. (MADHYA PRADESH)
7. BUTNI D/O LATE JAGAI SAHU, AGED ABOUT 60
YEARS, R/O HARRAHAVA TEHSIL SINGRAULI P.S.
WAIDHAN DISTRICT SINGRAULI M.P. (MADHYA
PRADESH)
8. RUTUA D/O MOTI, AGED ABOUT 48 YEARS,
OCCUPATION: W/O PHOOLCHAND SAHU R/O
MAHARSOB TEHSIL SURAJPUR (CG)
(CHHATTISGARH)
9. PHOOLMATI D/O MOTI SAHU, AGED ABOUT 54
YE A R S , OCCUPATION: W/O BABU LAL R/O
AMJHAR TEHSIL AND DISTRICT SINGROULI M.P.
(MADHYA PRADESH)
10. PANNU DIED THROUGH LRS JAGARNIYA W/O
LATE PANNU SHAH, AGED ABOUT 60 YEARS, R/O
VILLAGE KHATKHARI TEHSIL SINGRAULI P.S.
WAIDHAN DISTRICT SINGRAULI M.P. (MADHYA
PRADESH)
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 11/24/2023
1:16:59 PM
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11. PRABHU PRASAD S/O LATE PANNU SHAH, AGED
ABOUT 35 YEARS, R/O VILLAGE KHATKHARI
TEHSIL SINGRAULI P.S. WAIDHAN DISTRICT
SINGRAULI M.P. (MADHYA PRADESH)
12. KUSMI D/O LATE PANNU SHAH OCCUPATION:
W/O BALIRAM SHAH R/O GADHARA POST POUDI
NORAI TEHSIL AND DISTRICT SINGROULI M.P.
(MADHYA PRADESH)
13. NANKI D/O LATE PANNU OCCUPATION: W/O
CHANDE SHAH R/O KAMAL KHUS TEHSIL MADA
DISTRICT SINGROULI M.P. (MADHYA PRADESH)
14. SHIVNATH S/O MOTI SAHU, AGED ABOUT 42
YEARS, R/O KHATKHARI TEHSIL AND DISTRICT
SINGROULI M.P (MADHYA PRADESH)
15. STATE OF MADHYA PRADESH THROUGH THE
COLLECTOR SINGROULI DISTRICT SINGROULI
M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUDESH KUMAR MISHRA - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition has been filed by the plaintiffs against the order dated
02.03.2022 (Annexure P/7) passed by Second Civil Judge, Junior Division,
Waidhan, District- Singrauli, M.P.. The petitioners assail the order whereby the
application under Order 6 Rule 17 read with Section 151 of the CPC read with
section 151 of CPC filed by defendants has been allowed. By way of this
amendment, legal heirs of deceased defendant no.17 (Punnu) have been taken
on record in the cause title for counter claim.
2. Learned counsel for the petitioners submits that the suit has been
filed by the petitioners wherein deceased Punnu is defendant no.15. A copy of
the plaint is Annexure P/1. Defendant no.1 to 15, 8 and 13 to 16 filed a counter
claim. Both the suit and counter claim are being tried by the Court below.
3. Learned counsel for the petitioners submits that in the plaint legal
representatives of defendant no.15 Punnu were taken on record on 23.11.2017
itself, however, the legal heirs of said defendant no.15 was not taken on record
in the cause title of counter claim. With delay, application under order 6 Rule 17
read with section 151 of CPC was filed on 08.02.2022 by the defendants
wherein cause title was sought to be corrected through amendment to bring
legal heirs of defendant no.15 Punnu on record in the counter claim also.
4. Learned counsel for the petitioners has vehemently argued that plaint
and counter claim are separate proceedings and are tried together for the sake
of convenience of the Court. It is necessary to incorporate the legal heirs of
deceased defendant in the counter claim also separately. It is further submitted
that upon failure of defendants to implead legal representatives of deceased
defendant no.15 in the cause title of counter claim, the counter claim must fail
having been abated.
5. Learned counsel for the respondents has submitted that the learned
Court below has rightly allowed the application under Order 6 Rule 17 CPC
holding that non-impleadment of legal representatives of deceased defendant
no.15 (Pannu) was only a procedural mistake and it seems to be bonafide in
nature because the said legal representatives have already been brought on
record in the cause title of plaint way back in the year, 2017. Learned counsel
for the respondents further submits that abatement of entire counter claim
would not take place because the counter claim has been filed by several
defendants.
6. Heard the learned counsel for the parties.
7. The sole question involved in the case is that whether legal
representatives of a deceased party having been brought on record in the plaint
are required to be brought on record separately in the counter claim also and
secondly, whether upon failure of party to bring on record the legal heirs of
deceased in the counter claim, the counter claim can be held to be abated.
8. The issue is no longer res integra because the Hon'ble Supreme
Court had an occasion to consider the effect of substitutions of legal heirs in
the plaint within time and non-substitution of legal heirs of the same party in
counter claim. In the case of Organic Insulations Vs. Indian Rayon
Corporation (2003) 9 SCC 187 it has been held that the counter-claim has the
same effect as a cross-suit so as to enable the court to pronounce a final
judgment in the same suit, both on the original suit and on the counter-claim. As
the substitution has been made by the plaintiff in the suit, the legal heirs of the
plaintiff will have full opportunity to defend the counter-claim as both the suit
and the counter-claim will be tried in the same proceeding and therefore, no
prejudice would be caused to the legal heirs of the plaintiff in the counter-claim.
The relevant portion of the said judgment is as follows:-
2. Learned counsel appearing for the appellant referred to the
provisions of Order 8 Rule 6-A and argued that in view of sub-
rule (4) of Rule 6-A, the counter-claim is to be treated as a
plaint and governed by the Rules applicable to the plaint and,
therefore, unless the deceased defendant in the counter-claim
is substituted counter-claim would abate. At the first glance
the argument appeared attractive. However, on the
consideration, we find that the similar situation arose in the
case of N. Jayaram Reddy v. Revenue Divisional Officer &
Land Acquisition Officer, Kurnool (1979) 3 SCC 578 , AIR
1979 SC 1393. In the said case, under the land acquisition
proceedings, the State of Andhra Pradesh preferred an appeal
to the High Court and a cross-appeal was also filed by the
claimants against the judgment of the court below. In the
cross-appeal filed by the claimants, one of the claimants died.
After his death, his heirs moved an application for substitution
and the deceased claimant was substituted by the legal
representatives. However, the State Government did not take
any steps for substitution in cross-appeal. The question arose
whether the omission to substitute the deceased respondent in
the appeal, the appeal filed by the State would abate. Justice
D.A Desai who concurred with the judgment of Justice P.N
Shingal held as under: (SCC pp. 596-97, para 41).
"Shorn of embellishment, when legal representatives of a
deceased appellant are substituted and those very legal
representatives as legal representatives of the same person
occupying the position of respondent in cross-appeal are not
substituted, the indisputable outcome would be that they were
on record in the connected proceeding before the same court
hearing both the matters, in one capacity though they were not
described as such in their other capacity, namely, as legal
representatives of the deceased respondent. To ignore this
obvious position would be giving undue importance to form
rather than substance. The anxiety of the court should be
whether those likely to be affected by the decision in the
proceeding were before the court having full opportunity to
canvass their case."
(Emphasis Supplied)
3 . Coming to the provisions of Order 8 Rule 6-A, although
sub-rule (4) says that the counter-claim will be treated as a
plaint, under sub-rule (2), such counter-claim has the same
effect as a cross-suit so as to enable the court to pronounce a
final judgment in the same suit, both on the original suit and
on the counter-claim. As the substitution has been made by the
plaintiff in the suit, the legal heirs of the plaintiff will have full
opportunity to defend the counter-claim as both the suit and
the counter-claim will be tried in the same proceeding and
therefore, no prejudice would be caused to the legal heirs of
the plaintiff in the counter-claim. We, therefore, find that the
contention of the learned counsel for the appellant has no
force.
9. The aforesaid case was a case of substitutions of legal heirs of
plaintiffs in the plaint but non substitution of legal heirs of plaintiff in the counter
claim within time. The same reasoning would apply in the present case also,
which is the case of substitution of LRs of one deceased defendant in the plaint
within time but non substitution of legal heirs of the same defendant within time
in the counter claim.
10. In view of the above, the order dated 02.03.2022 (Annexure
P/7) passed by Second Civil Judge, Junior Division, Waidhan, District-
Singrauli, M.P. does not suffer from any illegality and is confirmed. The petition
fails and is hereby dismissed without any order as to costs.
(VIVEK JAIN)
JUDGE
sh
