Madhya Pradesh High Court
Vinod vs Gulab Bai on 5 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:2363
1 CR-104-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 5 th OF FEBRUARY, 2025
CIVIL REVISION No. 104 of 2023
VINOD AND OTHERS
Versus
GULAB BAI AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for applicants.
None present for respondents No.1 to 9 though served.
ORDER
This civil revision under Section 115 of CPC has been filed against the
order dated 09.01.2023 passed by Civil Judge, Junior Division, Sironj,
District Vidisha in Civil Suit No.34-A/2019 by which application filed by
respondents No.1 to 9 for substitution of legal representatives of plaintiff
No.3 Chain Singh was allowed.
2 . It is submitted by counsel for applicant that Chain Singh died on
22.04.2021 and an application under Order 22 Rule 3 of CPC was filed on
29.07.2022. The relaxation of period of limitation during the period of
COVID - 19 pandemic was withdrawn by Supreme Court by order dated
10.01.2022 passed in the case of In reference Cognizance for Extension of
Limitation reported in 2022 (1) MPLJ 250, therefore, application under
Order 22 Rule 3 of CPC should have been filed at least within a period of 90
days from recall of relaxation by Supreme Court. However, an
NEUTRAL CITATION NO. 2025:MPHC-GWL:2363
2 CR-104-2023
application under Order 22 Rule 3 of CPC was filed on 09.07.2022. No
application under Order 22 Rule 9 of CPC and Section 5 of Limitation Act
was filed. Accordingly, petitioner raised an objection. On 23.09.2022
plaintiffs/respondents No.1 to 9 filed an application under Section 5 of
Limitation Act on the ground that application could not be filed on account
of lack of knowledge and respondents No.1 to 9 are also entitled to get the
benefit of relaxation in period of limitation. Trial Court by impugned order
has allowed the applications and has taken legal representatives of plaintiff
No.3 Chain Singh on record.
3 . Challenging the order passed by Court below, it is submitted by
counsel for applicants that since relaxation in limitation was withdrawn by
Supreme Court by order dated 10.01.2022, therefore, application under Order
22 Rule 3 of CPC should have been filed at least within a period of 90 days
from thereafter. Since application was not filed, therefore, by force of law,
suit filed by Chain Singh had automatically stood abated and accordingly, an
application under Order 22 Rule 9 of CPC should have been filed.
4. Since said application was also not filed, therefore, an objection was
raised. In spite of the objection raised by applicants, respondents No.1 to 9
filed an application under Section 5 of Limitation Act only and did not file
application under Order 22 Rule 9 of CPC. Thus, it is prayed that in absence
of any prayer for setting aside the abatement of suit filed by plaintiff No.3
Chain Singh, Trial Court should not have permitted his legal representatives
to be brought on record.
5. Heard counsel for applicants.
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6. The relevant dates have already been reproduced.
7. The undisputed fact is that in spite of objection raised by applicants,
respondents No.1 to 9 did not file an application under Order 22 Rule 9 of
CPC. This Court cannot loose sight of the fact that applications are drafted
by lawyers and litigants have no say in the matter. If lawyers are not vigilant
enough in filing appropriate applications, then litigants should not be allowed
to suffer.
8. Be that whatever it may be.
9 . Now only question for consideration as to whether respondents
No.1 to 9 had disclosed any reason either in their application under Order 22
Rule 3 of CPC or application under Section 5 of Limitation Act so that
prayer for setting aside of abatement can be considered while considering the
application under Order 22 Rule 3 of CPC and Section 5 of Limitation Act or
not? In the application under Order 22 Rule 3 of CPC, it was specifically
mentioned by respondents that they were not aware of the pendency of suit.
A similar ground has also been mentioned in the application for condonation
of delay. If legal representatives of the deceased/plaintiffs were not aware of
the pendency of suit, then it can be a good ground for setting aside the
abatement.
10. The Supreme Court in the case of Mithailal Dalsangar Singh and
others Vs. Annabai Devram Kini and others reported in (2003) 10 SCC 691
has held as under:-
" 7 . Having heard the learned counsel for the parties, we are
satisfied that the appeal deserves to be allowed and the judgment
of the Division Bench deserves to be set aside."
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11. Accordingly by adopting the lenient a view it is held that prayer for
setting aside the abatement can be considered as a prayer in built in the
application filed under Order 22 Rule 3 of CPC and application under
Section 5 of Limitation Act can be treated as an application for condonation
of delay in filing the application for setting aside the abatement. Since Chain
Singh had died on 22.04.2022 i.e. during the period when second wave of
COVID - 19 pandemic was on its peak and furthermore, every attempt
should be made by this Court to decide the litigation on merits instead
of throwing the cases on the technical issue, this Court is of considered
opinion that Trial Court did not commit any mistake by taking the legal
representatives of deceased Chain Singh on record.
12. Accordingly, order dated order dated 09.01.2023 passed by Civil
Judge, Junior Division, Sironj, District Vidisha in Civil Suit No.34-A/2019 is
hereby affirmed. Revision fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
