Smt. Saroj vs Kadwa
2025 Latest Caselaw 5536 MP

Madhya Pradesh High Court

Smt. Saroj vs Kadwa on 13 March, 2025

Author: Avanindra Kumar Singh

Bench: Avanindra Kumar Singh

         NEUTRAL CITATION NO. 2025:MPHC-JBP:12920




                                                            1                                    MA-529-2013
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
                                               ON THE 13th OF MARCH, 2025
                                               MISC. APPEAL No. 529 of 2013
                                                      SMT. SAROJ
                                                        Versus
                                                   KADWA AND OTHERS
                          Appearance:
                            Shri K.K. Kushwaha - Advocate for the appellant.
                            Shri Sanjay Agrawal - Senior Counsel with Shri Mallikarjun Khare -
                          Advocate for the respondents.

                                                                ORDER

This Misc. appeal has been filed against the order dated 29.11.2012 passed by learned IVth Additional Sessions Judge, Khandwa (East Nimar) in R.C.A. No.13-A of 2012 (Smt. Saroj Vs. Kadwa and another) whereby the appeal has been dismissed as abated by rejecting the application under Order 22 Rule 4 of CPC, dated 27.6.2012.

2. The ground in the First Appellate Court was that appellant could not know about the death of Dropadibai when the summons were sent in civil suit and when appeal was filed.

3. Opposite party opposed the application on the ground that the appellant was always under knowledge that Dropadibai had expired but they deliberately did not bring this fact and L.R. on record.

4. Learned First Appellate Court recorded in the order dated 29.11.2012 that in the cross- examination of plaintiff - Saroj in trial court. This fact has been acknowledged by her that she was under

NEUTRAL CITATION NO. 2025:MPHC-JBP:12920

2 MA-529-2013 knowledge about the death of Dropadibai.

5. The grounds of appeal before this court is that the application should have been allowed in the facts and circumstances of the case as legal representative of Dropadibai was already on record. Thus, the appeal could not have been abated when the deceased - respondent no.

2- Dropadibai had become exparte before the trial court on 4.1.2010. Therefore, there was no need to reject the application though filed after ninety days.

6. On the other hand, learned counsel for the respondent submits that appellant was knowing that Dropadibai has expired. Death certificate was marked as Ex.D-2 showing the death of Dropadibai on 26.2.2010. Chief - examination of Kadwa was done on 21.10.2011, in which he submitted the death certificate, Ex.D-2.

7. Considered the rival submission of learned counsel for both the parties and perused the record.

8. It is seen that in trial court at the time of cross-examination of the plaintiff- Saroj in Para-10 of cross- examination, it was suggested to her that Dropadibai had expired and she submitted that Dropadibai has expired but she does not know the date when she expired. Kadwa, son of Dropadibai has appeared as witness and he has exhibited the death certificate of his mother as Ex.D-2, which shows that death of Dropadibai had taken place on 26.2.2010. Even thereafter the plaintiff did not take any step to file an appropriate application before the trial court and copy of judgment dated 29.2.2012 passed in Civil Suit No.44-A of 2009 (Smt. Saroj Vs. Kadwa and another) does not mention this fact that Dropadibai has expired and the suit was rejected on merit.

9. First appeal was filed in which again Dropadibai was made a party. Therefore, it is seen that plaintiff was throughout highly negligent

NEUTRAL CITATION NO. 2025:MPHC-JBP:12920

3 MA-529-2013 and careless inspite of knowledge of death of Dropadibai and therefore the appeal has rightly been treated as abated and dismissed as such.

10. In view of discussions made hereinabove no interference can be made. Thus, this appeal is dismissed as having no merit.

(AVANINDRA KUMAR SINGH) JUDGE

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