Shankar Singh Thakur vs Dasrath Singh Thakur
2023 Latest Caselaw 16514 MP

                                                          1
                               IN THE HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                             ON THE 6 th OF OCTOBER, 2023
                                            MISC. PETITION No. 5865 of 2023

                          BETWEEN:-
                          SHANKAR SINGH THAKUR S/O LATE SHRI KASHA
                          P R A S A D KASHIRAM, AGED ABOUT 75 YEARS,
                          OCCUPATION: THROUGH ATTORNEY HOLDER AND
                          GRAND SON PRADYUM SINGH THAKUR S/O PRAMOD
                          SINGH THAKUR AGED ABOUT 23 YEARS OCCUPATION
                          STUDY R/O 01 PURANI BASTI MAHARAJPUR JABALPUR
                          (MADHYA PRADESH)

                                                                                     .....PETITIONER
                          (BY DR. ANUVAD SHRIVASTAVA - ADVOCATE)

                          AND
                          1.    DASRATH SINGH THAKUR S/O LATE KASHA
                                PRASAD (KASHIRAM), AGED ABOUT 62 YEARS,
                                R/O MAHARAJPUR TEHSIL PANAGAR DISTRICT
                                JABALPUR (MADHYA PRADESH)

                          2.    SMT. PRABHA SINGH THAKUR W/O MADAN
                                SINGH THAKUR, AGED ABOUT 60 YEARS.

                          3.    JAY SINGH THAKUR S/O MADAN SINGH THAKUR,
                                AGED ABOUT 40 YEARS, BOTH R/O GAUTAM
                                NAGAR     MAHARAJPUR    TEHSIL  PANAGAR
                                DISTRICT JABALPUR (MADHYA PRADESH)

                          4.    AJAY SINGH S/O LATE VIJAY SINGH, AGED ABOUT
                                50 YEARS, R/O MAHARAJPUR TEHSIL PANAGAR
                                DISTRICT JABALPUR (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                          (BY NONE )

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                           ORDER

Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 10/7/2023 12:55:14 PM

By the instant petition, petitioner is challenging the order dated 21.08.2023 (Annexure P/4) whereby the application submitted by the petitioner/plaintiff under Order 22 Rule 4 of the Code of Civil Procedure for bringing legal heirs of defendant No. 1 on record has been rejected.

In a pending suit for declaration and perpetual injunction, the defendant No. 1 died and application under Order 22 Rule 4 CPC moved by the petitioner mentioning therein the reasons for not filing the application in time and also explaining the delay therein, however the said application was opposed by the other defendants asking that the suit be declared abated in relation to defendant No. 1. The court below vide impugned order dated 21.08.2023 has rejected the

application filed by the petitioner/plaintiff saying that the application under Order 22 Rule 9 CPC for setting aside abatement has not been filed. The application filed under Order 22 Rule 4 CPC was barred by time and it has been filed beyond the period of limitation for bringing legal heirs on record and therefore the said application was rejected by the court.

Shri Shrivastava submits that dealing with the issue there are several judgments holding that if application filed under Order 22 Rule 4 is descriptive and contains reasons for not filing the application under Order 22 Rule 4 in time then application under Order 22 Rule 9 CPC is not required to be filed separately. The Court can consider the application of Order 22 Rule 4 CPC treating the same to be an application under Order 22 Rule 9 CPC. He has placed reliance in the cases reported in AIR 1970 Manipur 70 - Ningthoujam Ongbi Radhe Devi and others v. Laisram Ningol Ningthoujam Ongbi Leikho Devi and others, AIR 2003 Allahabad 299 - Smt. Kamlesh vs. Tekchand and others and AIR 2000 Gauhati 90 - Pulakesh Dutta vs. Rasaraj Dey and others.

Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 10/7/2023 12:55:14 PM

Considering the aforesaid and looking to the application submitted by the petitioner/plaintiff before the court below and the order passed by the court below, I am also of the opinion that the court below has committed mistake in not considering the application submitted by the petitioner/plaintiff under Order 22 Rule 4 CPC in appropriate manner and rejected the same only on the ground that application under Order 22 Rule 9 CPC was not filed whereas all the reasons for not filing the application in time has been explained in the application itself filed under Order 22 Rule 4 CPC.

Accordingly, this petition is allowed. The impugned order dated 21.08.2023 (Annexure P/4) is hereby set aside directing court below to consider the application of the petitioner/plaintiff afresh and pass appropriate order thereof

(SANJAY DWIVEDI) JUDGE RAGHVENDRA

Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 10/7/2023 12:55:14 PM