Madhya Pradesh High Court
Kashiram Dehalvar vs Ku. Mandakini Bhalerao on 1 March, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 1 st OF MARCH, 2024
FIRST APPEAL No. 29 of 2013
BETWEEN:-
KASHIRAM DEHALVAR S/O LATE SHRI LALCHAND
DEHALVAR, AGED 61 YEARS, OCCUPATION :
AGRICULTURIST, LALITPUR COLONY, LASHKAR,
GWALIOR (MADHYA PRADESH)
.....APPELLANT
(APPELLANT HAS SINCE DIED, SHRI MUKESH KUMAR KULSHRESTHA -
ADVOCATE APPEARING ON BEHALF OF APPLICANT - SMT. SHOBHA
DEHALVAR)
AND
1. KU. MANDAKINI BHALERAO D/O LATE SHRI DINKAR
RAO BHALERAO, AGED 65 YEARS, OCCUPATION :
TEACHER, 42, MANIK VILAS COLONY, JHANSI ROAD,
LASHKAR, GWALIOR (MADHYA PRADESH)
2. ASHOK KUMAR SHARMA S/O SHRI DEVJEET
SHARMA, AGED 51 YEARS, MANIK VILAS COLONY,
LASHKAR, GWALIOR (MADHYA PRADESH
.....RESPONDENTS
(BY SHRI H.K.SHUKLA - ADVOCATE FOR RESPONDENT NO.2)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
1. Heard on I.A.No.1547 of 2023, an application under Order 22 Rules
3 and 9 of C.P.C., I.A.No.4677 of 2023, under Section 5 of the Limitation Act
as well as I.A.No.570/2022, an application for dismissing the appeal as abated.
2. This first appeal under Section 96 of Civil Procedure Code (for
brevity, CPC) has been filed by the appellant arising out of the judgment and
decree dated 27.11.2012 passed by the Seventh Additional District Judge,
Gwalior, District Gwalior in Civil Suit No 128-A/2011 (Kashiram Dehalvar vs.
Ku. Mandakini Bhalerao and Another).
3. In the case in hand, it is not disputed that sole appellant Kashiram
Dehalvar had died. By filing I.A.No.570 of 2022, learned counsel for the
respondent No.2 submitted that in this case, sole appellant died almost 2 years
back and respondent No.1 - Ku. Mandakini Bhalerao has also died on
27.12.2019 and within limitation, no application for substitution of their L.Rs. is
filed, therefore, this appeal be dismissed as abated. By filing I.A.No.1547 of
2023, learned counsel appearing on behalf of one Smt. Shobha Dehalvar
submitted that in this case, on 06.03.2023, she has received the notice from this
Court and thereafter, she came to know that this appeal which was filed by her
father-in-law- appellant Kashiram Dehalwar is pending. Her father-in-law -
appellant Kashiram Dehalwar died on 23.09.2020 leaving behind L.Rs. as
described in the application, therefore, the L.Rs. be substituted in place of the
appellant.
4. I.A.No.4677 of 2023 is filed under Section 5 of the Limitation Act by
Smt. Shobha Dehalvar. As per the facts mentioned in the application, appellant -
Kashiram Dehalwar was the father-in-law of applicant who had died and notice
in regard to presence of appellant before this Court has been served on
06.03.2023 at the house of appellant. Thereafter, she has filed the application
(I.A.No.1547 of 2023) on 23.03.2023. The wife Parvati Dehalwar of appellant -
Kashiram Dehalvar does not reside with applicant Smt. Shobha Dehalvar and is
not in contact with her, therefore, delay in filing application under Order 22
Rules 3 and 9 CPC be allowed.
5. Learned counsel for the respondent No.2 vehemently opposed the
applications filing reply as Documents No.3235 of 2023 and 4617 of 2023 and
submitted that the present appeal is liable to be dismissed as abated because
sole appellant - Kashiram Dehalvar died on 23.09.2020. Even respondent No.1
also died in the year 2019. Further submission is that the ground for delay filing
appeal is malafide and incorrect which is apparent from the joint reading of
facts mentioned in I.A.No.1547 of 2023 and I.A.No.4677 of 2023. It is further
submitted that as per the application under Section 5 of the Limitation Act,
applicant Smt. Shobha Dehalwar who is said to be daughter-in-law of appellant-
Kashiram Dehalvar received information about the pendency of this appeal on
29.03.2023 and filed application under Section 5 of the Limitation Act on
17.08.2023, however, application under Order 22 Rules 3 and 9 of CPC bearing
I.A.No.1547 of 2023 has been filed prior to receiving the information on
23.03.2023. These applications are supported by affidavit of applicant Smt.
Shobha Dehalvar and the facts mentioned in these applications show that the
entire story of delay in filing application is based on fictitious and frivolous
reasons. It is further submitted that applicant Smt. Shobha Dehalvar does not
come within the purview of legal heirs when the wife of Kashiram Dehalvar
namely Parvati is survived who has not approached this Court after death of her
husband. No affidavit of Parvati and son of deceased appellant - Kashiram
Dehalvar have been filed in support of application. Under these circumstances,
this appeal be dismissed as abated.
6. Heard and perused the record.
7. On perusal of record reveals that the sole appellant - Kashiram
Dehalvar died on 23.09.2020 and within limitation, no application for
substitution of L.Rs. has been filed. The reasons for delay in filing applications
for substitution of legal heirs are not found bonafide in view of the above
variations and contradictions in the facts narrated in these I.A.No.1547 of 2023,
an application under Order 22 Rules 3 and 9 CPC and I.A.No.4677 of 2023, an
application under Section 5 of the Limitation Act as indicated by learned
counsel for respondent. Under these circumstances, I.A.No.1547 of 2023 and
I.A.No.4677 of 2023 are dismissed. I.A.No.570 of 2022 filed by the respondent
No.2 (for dismissal of appeal as abated) is allowed and this appeal is hereby
dismissed as abated.
(SUNITA YADAV)
JUDGE
AK/-
