Madhya Pradesh High Court
Neena Singh vs Gopal Krishana on 18 February, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:4330
1 MCC-3143-2024
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 18th OF FEBRUARY, 2025
MISC. CIVIL CASE No. 3143 of 2024
DEEPAK SINGH AND OTHERS
Versus
GOPAL KRISHNA
Appearance:
Shri Sunil Kumar Jain, learned Senior counsel with Ms.
Nandini Sharma appeared for petitioner.
Shri Ashok Kumar Sethi, learned Senior counsel with Shri
Ajay Mishra, learned counsel for the respondent [R-1].
WITH
MISC. CIVIL CASE No. 3221 of 2024
NEENA SINGH AND OTHERS
Versus
GOPAL KRISHANA
Appearance
Shri Sunil Kumar Jain, learned Senior counsel with Ms.
Nandini Sharma appeared for petitioner.
Shri Ashok Kumar Sethi, learned Senior counsel with Shri
Ajay Mishra, learned counsel for the respondent [R-1].
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 2/18/2025
5:44:07 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:4330
2 MCC-3143-2024
ORDER
Both the applications have been filed arising out the same
judgment, therefore, the same are being heard and decided with this
common order.
2. The applicants have filed these MCC under Order 41 Rule
21 of CPC for setting aside the Ex-parte judgment dated 09.08.2024
passed in SA No.79/2011.
3. Learned Senior counsel for the applicants submits that the
final judgment has passed by co-ordinate Bench of this Court on
09.08.2024 without giving opportunity of hearing to the applicant. It
is submitted that in the Second Appeal No.79/2011, the sole
respondent was expired on 18.12.2020 and the death was declared by
the respondent on 02.04.2024. Thereafter, applications under Order
22 Rule 4 and under Order 22 Rule 9 of CPC were filed by the
respondent for for setting the abatement and bringing the LRs of sole
respondent were filed and vide order dated 19.04.2024, notices were
issued to the LRs and on the next date of hearing, both the
applications were allowed on 16.07.2024. It is also submitted that on
16.07.2024, the notices of the applications were served upon two of
the LRs, of sole respondents, but another two daughters have not
been arrayed as LRs of respondent, however, they could not appear
before the Court and 05.08.2024 and the matter was finally heard
NEUTRAL CITATION NO. 2025:MPHC-IND:4330
3 MCC-3143-2024
and ultimately, the final judgment was declared on 09.08.2024.
Therefore, the impugned judgment is exparte and was finally
decided without serving the notices upon the of merits appeal to the
LRs of sole respondent. However, it is admitted that the notices of
applications were served upon the LRs of respondent to Junior
advocate who cannot intimated the same to his office due to one or
the other reasons. Hence, in view of the settled position of law, the
LRs of sole respondents should be served on the appeal and the final
judgment should be passed after taking all the LRs on record and
giving them opportunity of hearing. It is also submitted that so far as
the MCC No.3221/2024 is concerned, the same has been filed on
behalf of two daughters namely Neena Singh and Reela Senger of
the respondent also for arraying them in the array of LRs of
deceased/respondent in appeal.
4. In support of his contentions, learned Senior counsel for the
applicants has placed reliance over the judgment of Hon'ble Apex
Court passed in the case of Savithri Amma Seethamma vs. Aratha
Karthy and Others (1983) 1 SCC 401 and in the case of Ashok
Kumar vs. New India Assurance Co. Ltd 2023 LiveLaw (SC) 587
wherein it has been mentioned that Lawyers fault cannot be faced by
the litigants.
5. Per contra, learned Senior counsel for the respondent has
NEUTRAL CITATION NO. 2025:MPHC-IND:4330
4 MCC-3143-2024
vehemently opposed the prayer by submitting that since the final
judgment has been passed the same may not be set aside and prays
for dismissal of the applications. However, learned Senior counsel
for the respondent has not disputed the factum of non-service of
notice to the LRs of sole respondent in second appeal on merits.
6. I have heard the counsel for the parties and perused the
record.
7. From the proceedings of the Second Appeal No.79/2011, it
is clear that appellant filed two applications on record to set aside the
abatement of sole respondent as well as to bring the LRs of sole
respondent in the appeal on record and vide order dated 19.04.2024,
notices were issued to the LRs of sole respondent, they were duly
served, but on the next date of hearing, none had appeared on behalf
of the LRs of respondent, hence, both the applications were allowed
necessary amendments were directed to be carried out. Finally, the
appeal was heard finally on 05.08.2024 and final judgment was
pronounced on 09.08.2024 which is an exparte judgment admittedly.
8. In this regard, the provisions under Order 41 Rule 14 of
CPC is mandatory for service upon the LRs of respective party on
merits of the appeal as well and solely on the basis of service of
interlocutory application on the LRs of deceased, cannot be treated
as service of notice on merits of appeal.
NEUTRAL CITATION NO. 2025:MPHC-IND:4330
5 MCC-3143-2024
9. In view of the factual aspect of the case as well as the
prescribed provisions of law as well as the fact that the LRs of
deceased respondent in the appeal submit be served and heard on
merits, this Court deems fit to allow these applications, hence, both
the applications are allowed. Consequently, the impugned judgment
dated 09.08.2024 passed in SA No.79/2011 stands set aside.
10. So far as MCC No.3221/2024 is concerned, the same has
also been filed on behalf of two daughters of the sole respondent,
therefore, they are also permitted to be arrayed in the array of LRs of
sole respondent of second appeal. Hence, all the applicants who are
LRs of deceased/sole respondent in the second are directed to be
impleaded in the array of respondent in second appeal immediately.
11. A copy of this order be also placed in the Record of SA
No.79/2011 as well as in connected MCC.
12. The MCC stands allowed and disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
amit
