Madhya Pradesh High Court
Harbhan Singh Kushwah vs The State Of M.P.And Ors. on 4 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:13649
1 FA-313-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 4 th OF JULY, 2025
FIRST APPEAL No. 313 of 2004
HARBHAN SINGH KUSHWAH
Versus
THE STATE OF M.P.AND ORS.
Appearance:
Mr. Anand Vinod Bhardwaj - Advocate for the appellant.
Mr. S.S. Kushwaha - Govt. Advocate for the respondents / State.
JUDGMENT
Heard on I.A. Nos. 1023/2024 and 1018/2024. I.A. No. 1023/2024 has
been filed for substitution of legal representatives of sole appellant on
record, whereas I.A. No.1018/2024 has been filed under Order 22 Rule 9
CPC read with Section 5 of Limitation Act.
2. It is the case of proposed legal representatives of sole appellant that
sole appellant died on 02.05.2012 and application for substitution of legal
representatives and setting aside abatement was filed on 12.02.2024. In the
application, it is mentioned by proposed legal representatives that they were
not aware of the pendency of the present appeal. It is also mentioned that
sole appellant had contacted the counsel for the last time in the year 2005,
and thereafter, when the case came up for hearing on 30.10.2023, counsel for
appellant made attempts to contact the appellant, but could not succeed in
the same. Accordingly, counsel for appellant sent a letter in the name of
NEUTRAL CITATION NO. 2025:MPHC-GWL:13649
2 FA-313-2004
plaintiff, and only thereafter, legal representatives came to the Office of
present counsel on 10.02.2024 and it was informed that sole appellant has
already died way back in the year 2012. Accordingly, it is submitted that
provisions of Order 22 are not penal in nature, and therefore, the delay in
filing an application for setting aside abatement should be considered
liberally.
3. Per contra, applications are vehemently opposed by counsel for
State. It is submitted that applications have been filed after 12 years of death
of sole appellant. It is the duty of the litigants to keep track of their case, and,
therefore, it cannot be accepted that the proposed legal representatives of sole
appellant, who are enjoying interim order of status quo dated 04.05.2005,
were not aware of pendency of this appeal, specifically when their prayer for
interim relief was rejected by order dated 28.03.2005 by holding that in fact
respondent No. 3 is in possession of the property in dispute.
4. Considered the submissions made by counsel for parties.
5. MCP No. 2795/2004, application for grant of temporary injunction
was rejected by this Court by order dated 28.03.2005 by holding that in
paragraph 31 of the impugned judgment, trial Court has held that respondent
No. 3 is in possession. Thereafter, it appears that another application was
filed seeking a restrain order against the respondents from erecting the
construction on the disputed property. Accordingly, by order dated
04.05.2005, it was directed that if any construction is raised by the
defendants during pendency of the appeal, then it shall be subject to the
outcome of the appeal. Then the case was listed on 18.02.2014, 30.10.203,
NEUTRAL CITATION NO. 2025:MPHC-GWL:13649
3 FA-313-2004
02.01.2024, and 05.02.2024.
6. It is not the case where case was never listed after 04.05.2005. Every
litigant has to keep track of his own case, and his lawyer is not expected to
approach the litigant to find out as to whether appellant is alive or not.
7. The record of the trial Court indicates that it also contains a
photograph Exh. D/2 showing affixture of a board by respondent No. 3,
making it clear to the general public that it is the property belonging to 13th
Battalion, Special Armed Force, Gwalior, Survey No.585, area 18 biswa.
Thus, it is clear that contention raised by proposed legal representatives of
sole appellant that they were not aware of the pendency of this appeal is
misconceived and false even to the knowledge of proposed legal
representatives of sole appellant.
8. Furthermore, appellants are also residents of Gwalior, and arguing
counsel is also a resident of Gwalior. Case is also pending before the Gwalior
Bench of this High Court at Gwalior. Therefore, it is not acceptable that
proposed legal representatives had never approached the counsel in
connection with their case.
9. Although it is the stand of proposed legal representatives that only
after receiving a letter from their counsel, they came to know about the
pendency of this appeal, but a copy of the said letter has not been annexed
along with either I.A. No. 1023/2024 or I.A. No. 1018/2024. Thus,
contention of proposed legal representatives of sole appellant that they were
not aware of the pendency of this appeal, or they never contacted the
counsel, is not correct.
NEUTRAL CITATION NO. 2025:MPHC-GWL:13649
4 FA-313-2004
10. It is true that provisions of Order 22 are not penal in nature, but a
litigant, who is not vigilant and is sleeping over the right, cannot be
awakened by liberally construing the provisions of law.
11. Under these circumstances, this Court is of considered opinion that
no sufficient cause could be pointed out by proposed legal representatives of
sole appellant for not filing an application for setting aside abatement within
a period of 60 days from the date of expiry of 90 days from the date of death
of sole appellant.
12. Accordingly, I.A. No. 1018/2024 filed under Order 22 Rule 9 CPC
read with Section 5 of Limitation Act is hereby rejected and delay in filing
an application for setting aside abatement is not condoned. As a result, I.A.
No. 1023/2024, application filed under Order 22 Rule 3 CPC is also rejected.
13. Accordingly, appeal is dismissed as abated .
(G. S. AHLUWALIA)
JUDGE
AKS
