Madhya Pradesh High Court
Aasharam (Decd.) Thru: Lrs Smt. ... vs Bhagwan Singh (Deceased Res. No. 1 As Per ... on 27 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 27th OF FEBRUARY, 2024
MISC. APPEAL No. 844 of 2008
BETWEEN:-
1. ASHARAM S/O BALMUKUND (DECEASED),
(Deleted as per Hon'ble Court order dated 26.04.2010)
THROUGH LEGAL REPRESENTATIVES: -
1(A) SMT. SARASWATIBAI WD./O LATE ASHARAM,
AGE: 75 YEARS, OCCUPATION: NOTHING,
1(B) SHIVSHANKAR S/O LATE ASHARAM,
AGE: 55 YEARS, OCCUPATION: AGRICULTURIST,
1(C) MOHANLAL S/O LATE ASHARAM,
AGE: 53 YEARS, OCCUPATION: AGRICULTURIST,
1(D) KAILASH S/O LATE ASHARAM,
AGE: 38 YEARS, OCCUPATION: AGRICULTURIST,
ALL RESIDENT OF VILLAGE DATODA,
TEHSIL MHOW, DISTRICT INDORE (M.P.)
1(E) SMT. SUSHILABAI W/O PHULSINGH,
AGE: 45 YEARS, R/O: VILLAGE JAITPURA,
TEHSIL & DISTRICT INDORE (M.P.)
1(F) SMT. KANTABAI W/O GANPATH,
AGE: 43 YEARS, R/O: VILLAGE JAITPURA,
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 2/28/2024
5:52:10 PM
2
TEHSIL & DISTRICT INDORE (M.P.)
1(G) SMT. SHANTIBAI W/O BHURELAL,
AGE: 40 YEARS, R/O: VILLAGE MUNDLA,
TEHSIL & DISTRICT KHARGONE (M.P.)
1(H) SMT. MALATI W/O RUPSINGH,
AGE: 36 YEARS, R/O: GREATER BRIJESHWARI
COLONY, INDORE, DISTRICT INDORE (M.P.)
GOVIND S/O BALMUKUND,
AGE: 70 YEARS, OCCUPATION: AGRICULTURIST,
2.
R/O: VILLAGE DATODA, TEHSIL &
DISTRICT INDORE (M.P.)
PARASRAM S/O BALMUKUND,
AGE: 65 YEARS, OCCUPATION: AGRICULTURIST,
3.
R/O: VILLAGE DATODA, TEHSIL MHOW,
DISTRICT INDORE (M.P.)
RAMESH S/O BALMUKUND,
AGE: 50 YEARS, OCCUPATION: AGRICULTURIST,
R/O: VILLAGE PEDMI JETPURA,
4.
TEHSIL & DISTRICT INDORE (M.P.)
PRESENT ADDRESS: VILLAGE DALODA,
TEHSIL MHOW, DISTRICT INDORE (M.P.)
MAHESH S/O GOVIND DANGI,
AGE: 47 YEARS, OCCUPATION: AGRICULTURALIST,
5.
R/O: VILLAGE DATODA, TEHSIL MHOW,
DISTRICT INDORE (M.P.)
.....APPELLANTS
(BY SHRI PRAFULLA VIDYADHAR BHAGWAT - ADVOCATE.)
AND
1. BHAGWAN SINGH S/O NARAYAN SINGH DANGI, (DECEASED)
(Deleted as per Hon'ble Court order dated 31.01.2014)
THROUGH LEGAL REPRESENTATIVES: -
1(A) CHANDA D/O LATE BHAGWAN SINGH,
AGE: 35 YEARS, OCCUPATION: HOUSEWIFE,
R/O: TILLOR BUJURG, TEHSIL &
DISTRICT INDORE (M.P.)
1(B) SHARDA W/O LEELADHAR,
AGE: 40 YEARS, OCCUPATION: HOUSEWIFE,
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 2/28/2024
5:52:10 PM
3
R/O: TILLOR BUJURG, TEHSIL &
DISTRICT INDORE (M.P.)
2. KEWAL SINGH S/O NARAYAN SINGH (DECEASED)
THROUGH LEGAL REPRESENTATIVES: -
2(A) SMT. RANGA BAI W/O LATE KEWAL SINGH DANGI,
R/O: VILLAGE JETPURA (PEDMI), TEHSIL &
DISTRICT INDORE (M.P.)
2(B) SURESH S/O LATE KEWAL SINGH DANGI,
R/O: VILLAGE PEDMI JETPURA, TEHSIL &
DISTRICT INDORE (M.P.)
2(C) SAVITA BAI W/O BHANWAR DANGI,
R/O: VILLAGE PEDMI JETPURA, TEHSIL &
DISTRICT INDORE (M.P.)
2(D) CHAMELI BAI W/O MULLU SINGH DANGI,
R/O: VILLAGE MUNDLA, TEHSIL BADWA,
DISTRICT KHARGONE (M.P.)
2(E) SUNITA BAI W/O GHANSHYAM,
R/O: VILLAGE PEDMI JETPURA, TEHSIL &
DISTRICT INDORE (M.P.)
PRAHLAD SINGH S/O BHAGWAN SINGH DANGI,
AGE: 52 YEARS, OCCUPATION: AGRICULTURIST,
3.
R/O: VILLAGE PEDMI JETPURA,
TEHSIL AND DISTRICT INDORE (M.P.)
RADHESHYAM S/O BHAGWAN SINGH DANGI,
AGE: 50 YEARS, OCCUPATION: AGRICULTURIST,
4.
R/O: VILLAGE PEDMI JETPURA,
TEHSIL AND DISTRICT INDORE (M.P.)
GHANSHYAM S/O BHAGWAN SINGH DANGI,
AGE: 48 YEARS, OCCUPATION: AGRICULTURIST,
5.
R/O: VILLAGE PEDMI JETPURA,
TEHSIL AND DISTRICT INDORE (M.P.)
MADAN S/O BHAGWAN SINGH DANGI,
AGE: 35 YEARS, OCCUPATION: AGRICULTURIST,
6.
R/O: VILLAGE PEDMI JETPURA,
TEHSIL AND DISTRICT INDORE (M.P.)
SMT. SHAKUNTALA D/O KAMAL SINGH,
AGE: 65 YEARS, OCCUPATION: AGRICULTURIST,
7.
R/O: VILLAGE SINDHI BARODA,
TEHSIL AND DISTRICT INDORE (M.P.)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 2/28/2024
5:52:10 PM
4
AVANTI BAI D/O SAMARTH SINGH,
AGE: 50 YEARS, OCCUPATION: AGRICULTURIST,
8.
R/O: MUKHTEYAR BALWAADA,
TEHSIL BADWA, DISTRICT KHARGONE (M.P.)
THE STATE OF MADHYA PRADESH,
9.
THROUGH COLLECTOR, INDORE (M.P.)
.....RESPONDENTS
(PRIVATE RESPONDENTS BY SHRI J. B. MEHTA - ADVOCATE.
RESPONDENT NO.9 - STATE OF MADHYA PRADESH BY SHRI KUSHAL GOYAL -
DEPUTY ADVOCATE GENERAL ON BEHALF OF ADVOCATE GENERAL.)
HEARD AND RESERVED ON: 19.02.2024
ORDER PASSED ON: 27.02.2024
This appeal coming on for orders this day, the court passed the following:
ORDER
The appellants - defendants have filed this miscellaneous appeal under
Order 43 Rule 1 of the Code of Civil Procedure, 1908 (herein after referred to as
the Code) against order dated 30.10.2007 passed by learned 17 th Additional District
Judge, Indore (Fast Track) Indore, District Indore (M.P.) in Regular Civil Appeal
No.09 of 2006, whereby the suit was remanded to the Trial Court by setting aside
order dated 02.08.2004 passed by 8 th Civil Judge, Class-I, Indore whereby Civil
Suit No.115-A of 2004 was dismissed as abated.
2. In short, the facts of the case are, as under: -
2.1 Bhagwan Singh S/o Narayan Singh and others being plaintiffs filed a suit for
declaration and permanent injunction in respect of land bearing Survey No.41 area
4.671 hectares and Survey No.141 area 0.121 hectares situated at Village Padmi
Jetpura, Tehsil and District Indore. The plaintiffs and defendants are relatives to
each others. The suit land was original owned by their grandfather Bane Singh.
There was a partition of land between the plaintiffs and defendants. The suit land
came into share of defendant Balmukund, who died nearabout 45-46 years ago.
His wife Sundarbai was in need of money, therefore, the plaintiffs' father Narayan
Singh gave her Rs.2,000/- (rupees two thousand) and in lieu of it, she handed over
the possession of land to him. An agreement to that effect was also executed.
Therefore, now the defendants had no right and title over the suit land. The
plaintiffs are in possession of the suit land. Therefore, they are entitled for decree
of declaration and permanent injunction.
2.2 The defendants opposed the suit by submitting that the suit land is jointly
recorded in the name of Narayan Singh and defendants No.1 to 4 for which the
plaintiffs have no right. They also denied that Sundarbai W/o Balmukund had sold
the suit land to the plaintiffs.
2.3 During pendency of the suit, defendants No.1 and 7 died. The name of
defendant No.7 was deleted vide order dated 16.03.2004. No application for
bringing legal heirs of defendant1 No.1 was filed by the plaintiffs.
2.4 Counsel appearing for defendant No.1 did not inform about the death, as
required under Order 22 Rule 10-A of the Code. Learned Civil Court dismissed
the suit, as abated vide judgment and order dated 02.08.2004.
2.5 Plaintiffs preferred regular civil appeal. Vide judgment and order dated
30.10.2007, the learned First Appellate Court, after examining the record, held that
the counsel for defendant No.1 did not inform about the death of defendant No.1,
hence the suit wrongly was dismissed on 02.08.2004 as abated. Defendant No.1
died in the year 1983, his counsel continued to appear for him till 1992 and
thereafter in the year 1997, the defendants were proceeded ex parte. But the suit
was dismissed due to non-appearance of the plaintiffs on 30.08.2000, however, it
was restored on 06.01.2004 i.e. after more than three years in restoration
proceedings also no information was given about the death of defendant No.1 by
other defendants.
2.6 The plaintiffs filed an application under Order 22 Rule 4 read with Section
151 of the Code for bringing legal heirs of defendant No.1 on record. Therefore,
vide judgment and order dated 30.10.2007, learned First Appellate Court has set
aside order dated 02.08.2004 passed in Civil Suit No.115-A of 2004 and restored
the suit back for adjudication on merit.
2.7 Being aggrieved by the aforesaid judgment and order, the defendants
preferred the present miscellaneous appeal before this Court.
3. Shri Prafulla Vidyadhar Bhagwat, learned counsel appearing for the
appellants - defendants submits that the parties are relatives to each other, hence
the death of defendant No.1 was well within the knowledge of the plaintiffs.
Therefore, they cannot take a plea that the advocate did not inform about the death
of defendant No.1, therefore, application under Order 22 Rule 4 of CPC could not
be filed. The proceedings of restoration of the suit remained pending for four years
and as per the record, defendant No.1 died in the year 1996. Apart from that,
plaintiff No.5 also died in the year 1995. Therefore, remand of the suit was not
warranted and the appeal ought to have been dismissed.
4. Shri J.B. Mehta, learned counsel appearing for respondents - plaintiffs
submits that the learned First Appellate Court has not committed any error of law
as well as facts while remanding the matter back to the trial Court. No opportunity
was given for filing application before dismissing the suit as abated. An
application under Order 22 Rule 9 of the Code could have been preferred, but the
Trial Court dismissed the suit. Because of pendency of this appeal, the suit which
was filed in the year 1977, has not been decided till date, hence records of suit be
sent back to the Civil Court.
5. I have heard learned counsel for the parties and perused the record of the
case.
6. It is correct that during pendency of the plaint / suit as well as restoration
application, death of defendant No.1 and details of legal heirs were not informed to
the Court as well as to the plaintiffs, as required under Order 22 Rule 10-A of the
Code by the defendants' counsel. All the defendants were jointly contesting the
suit. Therefore, death of one of the defendants will not result into abatement of
entire civil suit, as abated. Learned Civil Judge dismissed the suit as the plaintiffs
did not file an application for setting aside abatement and dismissed the suit, but it
is an admitted position that the counsel of the defendant No.1 did not inform about
the death of defendant No.1, then there was no question of delay in applying for
setting aside of abatement.
7. The apex Court in the case of Banwari Lal (dead) by Legal
Representative and another v. Balbir Singh reported in (2016) 1 SCC 607 had
held that procedure under Order 22 of CPC are designed to advance justice and
should be so interpreted as not to make them penal statues for punishing erring
parties on sufficient cause, delay in bringing the legal representatives of the
deceased party on record should be condoned. Relevant Paragraph No.10 is
reproduced below:-
"In Sital Prasad Saxena vs. Union of India (1985) 1 SCC 163, it was
observed that rules of procedure under Order 22 CPC are designed to
advance justice and should be so interpreted as not to make them penal
statues for punishing erring parties. On sufficient cause, delay in bringing
the legal representatives of the deceased party on record should be
condoned. Procedure is meant only to facilitate the administration of
justice and not to defeat the same. The dismissal of the second appeal by
the High Court does not constitute a sound and reasonable exercise of its
powers and the impugned order (Banwari Lal v. Balbir Singh) can not be
sustained."
8. Therefore, I do not find any ground to interfere in this appeal. The appeal is
dismissed.
9. Let the records of both the Courts be sent. Since regular civil suit filed on
30.11.1977, therefore, the trial Court is directed to expedite the suit and decide the
same preferably by the end of this year.
10. During pendency of this appeal, other plaintiffs and defendants have also
expired, therefore, a proper opportunity be given to the plaintiffs to bring their
legal heirs on record.
(VIVEK RUSIA)
rcp
JUDGE
