Madhya Pradesh High Court
Jamuna Prasad Kulpariya vs Dharam Prakash Gupta (Deceased) ... on 22 May, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 22 nd OF MAY, 2024
MISC. CIVIL CASE No. 3012 of 2023
BETWEEN:-
JAMUNA PRASAD KULPARIYA S/O SHYAMLAL
KULPARIYA, AGED ABOUT 55 YEARS, R/O 974 A GALI
NO. 20 SADAR BAZAR JABALPUR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI R.P. KHARE - ADVOCATE)
AND
1. DHARAM PRAKASH GUPTA (DECEASED)
THROUGH LRS RAVI KESHARWANI S/O LATE
D HAR AM PRAKASH GUPTA R/O 974 AND 997
BETWEEN 21AND21 SADAR BAZAR CANTT.
JABALPUR (MADHYA PRADESH)
2. RISHI KESHARWANI S/O LATE DHARAM
PRAKASH GUPTA R/O 974 AND 997, BETWEEN
GALI NO 21 AND 21 SADAR BAZAR, CANTT.
JABALPUR DISTRICT JABALPUR (MADHYA
PRADESH)
3. VIKAS KESHARWANI S/O LATE DHARAM
PRAKASH GUPTA R/O 974 AND 997, BETWEEN
GALI NO 21 AND 21 SADAR BAZAR, CANTT.
JABALPUR DISTRICT JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI PRAMANSHU MANU - ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
This application has been filed by the applicant under Order 41 Rule 13
of CPC read with Section 151 of Cr.P.C. for restoration of Second Appeal
No.966/2006 to its original number which has been dismissed as abated vide
order dated 08.11.2023.
2 . It is contended by the counsel that the present applicant had filed a
Second Appeal No.966/2006 before this Court which came up for hearing on
08.11.2023. As none appeared on behalf of the appellant and there was an
application filed by the respondent vide I.A.No.5819/2022 whereby the prayer
was made to dismiss the appeal as abated, as a result of which, this Court
dismissed the Second Appeal No.966/2006 as abated while observing that as
the respondent-Dharam Prakash Gupta has already expired way back on
15.01.2020 and no application for substitution has been filed, therefore, the
second appeal stood abated.
3. It is further contended by the counsel that in the present case, late Shri
Ramesh Shrivastava, Advocate was engaged by the appellant and the second
appeal was filed in the year 2006. During pendency of the said appeal, Shri
Ramesh Shrivastava, Advocate expired in the year 2011 and accordingly, the
present applicant had no knowledge regarding status of the appeal. Moreover,
the applicant is an old aged person and had paralytic attack also thus, there was
no knowledge regarding death of the counsel in the year 2011 as well as death
of the respondent-Dharam Prakash Gupta. It is further contended by the
counsel that a reply to the application of the appellant, has been filed by the
respondent and along with the reply, a copy of courier receipt has been brought
on record and on the strength of the said courier receipt, it is being sought to be
alleged by the respondent that a copy of I.A.No.5819/2022 which was filed in
Second Appeal No.966/2006, was sent to Advocate, Ramesh Shrivastava
through Madhur courier on 20.05.2022. It is also contended by the counsel that
as Advocate, Ramesh Shrivastava expired in the year 2011, therefore, sending
any copy to him by courier was an exercise in futility. It is contended by the
counsel that on account of the order impugned, there is adverse affect on the
substantive right of the applicant and the same is being jeopardized. Thus, it is
contended by the counsel that the application for condonation of delay filed
vide I.A.No.19448/2023 and application filed under Order 22 Rule 4 of CPC as
well as the application filed under Order 22 Rule 9 of CPC, be allowed.
4. Learned counsel for the respondent has opposed all the aforesaid
applications and it is submitted that the present application deserves to be
dismissed. It is contended by the counsel that respondent-Dharam Prakash
Gupta was residing in the adjacent property which is evident from death
certificate which has been brought on record as Annexure R/5. It is further
contended by the counsel that the applicant's right from inception was
throughout aware about the death of respondent-Dharam Prakash Gupta but no
efforts were made to bring his legal representatives on record despite the death
of the respondent on 15.01.2020. It is also contended by the counsel that there
was complete failure on the part of the present applicant to bring the legal
representative of respondent on record and resultantly, this Court rightly
dismissed the Second Appeal No.966/2006 while passing the order of
abatement dated 08.11.2023. It is further contended by the counsel that the
entire documents have been brought on record to demonstrate that there was
willful and deliberate lapse on the part of the applicant in not bringing the legal
representative of the respondent-Dharam Prakash Gupta on record. In support
of his contention, counsel has place reliance on the decision of the Apex Court
in the case of Balwant Singh vs. Jagdish Singh and Others in Civil Appeal
No.1166/2006 decided on 08.07.2010.
5. No other point is argued or pressed by both the parties.
6 . Heard the rival submissions of both the parties and perused the
record.
7. In the present case, the Second Appeal No.966/2006 was dismissed as
abated on 08.11.2023 on the ground that the legal representative of respondent-
Dharam Prakash Gupta who died on 15.01.2020, was not brought on record
within the stipulated period. It is evident from the record that one Ramesh
Shrivastava, Advocate was engaged by the appellant to defend him and as per
the averments made in paragraph 5.3 of the application which is supported by
an affidavit, Shri Ramesh Shrivastava, Advocate expired in the year 2011 and
the Second Appeal remained in pending for almost 12 years and then came up
for consideration on 08.11.2023 before this Court. On the said date i.e.
08.11.2023, the counsel who was defending the appellant was already expired,
therefore, there was no appearance on behalf of the appellant when the second
appeal was taken up for hearing by this Court on 08.11.2023. It is further
important to take note of the fact that the respondent in the Second Appeal
No.966/2006 moved an application vide I.A.No.5819/2022, by which the
factum of death of respondent-Dharam Prakash Gupta during pendency of
second appeal was brought to the notice of this Court. Simultaneously, a prayer
was also made in the application to dismiss the appeal having been abated. The
notice of said application was sent to Advocate, Ramesh Shrivastava through
courier and the courier receipt has been brought on record by the respondent as
Annexure R/2.
8. It is evident that the present applicant was being defended by
Advocate, Ramesh Shrivastava. It is further evident that Advocate, Ramesh
Shrivastava expired in the year 2011, therefore, after the year 2011, there was no
representation on behalf of present applicant before this Court. Thus, in
absence of any representation on behalf of the appellant, apparently neither any
application for bringing the legal representative of the respondent on record
could be filed nor any application for setting aside the order of abatement was
filed.
9. Thus, in obtaining facts and circumstances of the case, it is palpable
that the counsel who was representing the present appellant had passed away
and factum of death of the counsel was not within the knowledge of the
appellant/present applicant which is evident from specific averments made in
paragraph 5.3 of the application which is also supported by the affidavit.
1 0 . Therefore, this Court is of the considered view that the Second
Appeal No.966/2006 is liable to be restored to its original number.
1 1 . The judgment relied upon by the counsel for the respondent is
distinguishable on facts.
12. Resultantly, the application filed under Section 5 of Limitation Act
which is supported by an affidavit of the applicant, vide I.A.No.19448/2023 is
allowed. The delay occasioned in filing of this application is hereby condoned.
13. The application filed under Order 22 Rule 9 of CPC which is
supported by an affidavit of the applicant vide I.A.No.19555/2023 is also
allowed and the order of abatement is set-side.
1 4 . The another application filed under Order 22 Rule 4 read with
Section 151 of CPC which is supported by an affidavit of the applicant vide
I.A.No.19447/2023 is allowed. Let the legal representatives of the
respondent-Dharam Prakash Gupta be also brought on record within 30
working days.
15. In the meantime, the applicant is also permitted to carry out the
necessary amendment in the cause title of the Second Appeal No.966/2006 in
terms of this order.
16. In view of the aforesaid, the application for restoration which is
supported by an affidavit of the applicant, the same is also allowed. Let
Second Appeal No.966/2006 be restored to its original number and be listed for
hearing before the appropriate bench as per roster.
17. A copy of this order be placed in the record of Second Appeal
No.966/2006.
18. With the aforesaid, the present application stands allowed.
(MANINDER S. BHATTI)
JUDGE
sp
