Madhya Pradesh High Court
Shubhendra Mishra vs Rangnath on 5 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 5 th OF FEBRUARY, 2024
MISC. PETITION No. 1733 of 2023
BETWEEN:-
SHUBHENDRA MISHRA S/O SHRI DEVENDRANATH
MISHRA, AGED ABOUT 31 YEARS, OCCUPATION:
PRIVATE JOB R/O VILLAGE MANGAWAN (RANIPURWA)
TAHSIL MANGAWAN DISTRICT REWA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI K.S. JHA - ADVOCATE)
AND
1A. RANGNATH S/O LATE SHRI LAXMAN PRASAD,
AGED ABOUT 52 YEARS, R/O VILLAGE
MANGAWAN NAGAR PARISHAD MANGAWAN
WARD NO 4, P.O. AND TEHSIL MANGAWAN
DISTRICT REWA (MADHYA PRADESH)
1B. KAPIL MUNI MISHRA S/O LATE SHRI LAXMAN
PRASAD, AGED ABOUT 40 YEARS, R/O VILLAGE
MANGAWAN NAGAR PARISHAD MANGAWAN
WARD NO. 4 P.O. AND TEHSIL MANGAWAN
DISTRICT REWA (MADHYA PRADESH)
1C. SUSHILA DEVI D/O LATE SHRI LAXMAN PRASAD,
AGED ABOUT 37 YEARS, R/O VILLAGE GOOMI
(GURH) TEHSIL GURH DISTRICT REWA (MADHYA
PRADESH)
1D. SAVITRI DEVI D/O LATE SHRI LAXMAN PRASAD,
AGED ABOUT 37 YEARS, R/O VILLAGE DIGHOUR
POST DHERA TEHSIL MAUGANJ DISTRICT REWA
(MADHYA PRADESH)
1E. ARUNA DEVI D/O LAXMAN PRASAD W/O
NARENDRA PRASAD, AGED ABOUT 33 YEARS, R/O
VILLAGE SURSA TEHSIL RAIPUR KARCHULIYAN
DISTRICT REWA (MADHYA PRADESH)
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1F. SANDHYA DEVI D/O LAXMAN PRASAD W/O
RAMNIWAS, AGED ABOUT 31 YEARS, R/O
VILLAGE KOLAHA POST PATAI THANA GARH
DISTRICT REWA (MADHYA PRADESH)
1G. ABHA DEVI D/O LAXMAN PRASAD W/O ARUN
KUMAR, AGED ABOUT 29 YEARS, R/O VILLAGE
DUBGAWAN POST KATAKI TEHSIL SIRMOUR
DISTRICT REWA (MADHYA PRADESH)
2A. DEVENDRANATH MISHRA S/O LATE SHRI
VISHWANATH PRASAD MISHRA, AGED ABOUT 60
YEARS, R/O VILLAGE MANGAWAN WARD NO. 4
POST MANGAWAN THANA AND TEHSIL
MANGAWAN DISTRICT REWA (MADHYA
PRADESH)
2B. PRAYAGDATT MISHRA S/O LATE SHRI
VISHWANATH PRASAD MISHRA, AGED ABOUT 58
YEARS, R/O VILLAGE MANGAWAN WARD NO. 4
POST MANGAWAN THANA AND TEHSIL
MANGAWAN DISTRICT REWA (MADHYA
PRADESH)
2C. JITENDRA MISHRA S/O LATE SHRI VISHWANATH
PRASAD MISHRA, AGED ABOUT 51 YEARS, R/O
VILLAGE MANGAWAN WARD NO. 4 POST
MANGAWAN THANA AND TEHSIL MANGAWAN
DISTRICT REWA (MADHYA PRADESH)
2D. BALKRISHNA MISHRA S/O LATE SHRI
VISHWANATH PRASAD MISHRA, AGED ABOUT 49
YEARS, R/O VILLAGE MANGAWAN WARD NO. 4
POST MANGAWAN THANA AND TEHSIL
MANGAWAN DISTRICT REWA (MADHYA
PRADESH)
3A. BHAIYALAL DWIVEDI S/O LATE SHRI HIRAMANI
DWIVEDI, AGED ABOUT 52 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE RANIPURWA
NAGAR PARISHAD MANGWAN WARD NO.8 POST
MANGAWAN TEHSIL MANGAWAN DISTRICT
REWA (MADHYA PRADESH)
3B. SUSHILA PANDEY D/O LATE SHRI HIRAMANI
DWIVEDI W/O BAIJNATH PANDEY, AGED ABOUT
54 YEARS, OCCUPATION: SERVICE R/O VILLAGE
BELWA PAIKAN TEHSIL RAIPUR KARCHULIYAN
DISTRICT REWA PRESENTLY R/O GAUTAM
NAGAR BHOPAL TEHSIL AND DISTRICT BHOPAL
(MADHYA PRADESH)
3
3C. PREMA DEVI UPADHYAY D/O LATE SHRI
HIRAMANI DWIVEDI W/O ANIRUDDHA PRASAD
UPADHYAY, AGED ABOUT 50 YEARS, R/O VILLAGE
BELWA PAIKAN TEHSIL RAIPUR KARCHULIYAN
DISTRICT REWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUSHANT RANJAN - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Petition under Article 227 of Constitution of India has
been filed against order dated 27.02.2023 passed by First Civil Judge, Junior
Division Sirmour, District Rewa in RCSA No.2510/1989 by which an
application filed by petitioner for his impleadment as legal representative of
plaintiff Smt. Lolaria has been rejected.
2. It is submitted by counsel for petitioner that two suits were filed. One suit
remained pending, whereas another suit was decided, which went up to the
stage of Second Appeal. In pending suit, petitioner has been impleaded as legal
representative of Smt. Lolaria. Since Smt. Lolaria had expired during pendency
of Second Appeal No.972/1997, therefore an application was also filed by
petitioner for his substitution as legal representative of Smt. Lolaria. However,
the application for impleadment of petitioner was rejected in Second Appeal
No.972/1997. Thereafter, petitioner filed an application for recall of said order
and this Court by order dated 21.11.2017 passed in Second Appeal
No.972/1997 held that I.A. No.14686/2017 (an application for recall) will be
considered at the time of final hearing. Second Appeal No.972/1997 was finally
decided by a Coordinate Bench of this Court by judgment dated 13.10.2022
and impugned judgment and decree was set aside and the matter was remanded
back with a direction to decide the civil suit alongwith other pending civil suit
No.418-A/2011 filed by Vishwanath for declaration of title and permanent
injunction. However, I.A. No.14686/2017 remained pending and it was not
decided. After the matter was remanded back, petitioner moved an application
for his substitution as legal representative of Smt. Lolaria. However, by
impugned order dated 27.02.2023, the said application has been rejected. It is
submitted by counsel for petitioner that in connected pending civil suit,
petitioner has already been substituted as legal representative of Smt. Lolaria
and therefore, rejection of application of petitioner for his impleadment as legal
representative of Smt. Lolaria is bad in law.
3. Per contra, petition is vehemently opposed by counsel for respondents
and supported the findings given by the Court below.
4. Heard the learned counsel for parties.
5. In Second Appeal No.972/1997, application filed by petitioner for his
substitution as legal representative of Smt. Lolaria on the strength of a Will was
rejected. However, I.A. No.14686/2017 was filed for recall of said order and
unfortunately, the said application remained pending and Second Appeal
No.972/1997 was allowed and the matter was remanded back. It is well
established principle of law that appeal is a continuation of suit and once the
application filed by petitioner for his substitution on the strength of Will was
already dismissed in appeal by order dated 29.09.2005, then the trial Court has
no jurisdiction to substitute the petitioner as legal a representative of Smt.
Lolaria.
6. Under these circumstances, this Court is of considered opinion that no
jurisdictional illegality was committed by the trial Court by rejecting the
application filed by petitioner for his substitution as legal representative of Smt.
Lolaria.
7. At this stage, it is submitted by counsel for petitioner that he may be
granted liberty to file an application for recall of judgment dated 13.10.2022
passed in Second Appeal No.972/1997 on the ground that application for recall
of order dated 29.09.2005 has remained pending and has not been decided.
8. Considered the submissions made by counsel for petitioner.
9. Petitioner has a right to file an application for review of order dated
13.10.2022 and no separate liberty is required for the said purposes.
10. Since no jurisdictional error was committed by trial Court, accordingly, no
case is made out warranting interference.
11. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
SR*
