Madhya Pradesh High Court
Pradeep Tiwari vs Vinodini Bhargava (Dead) Through Lrs ... on 10 October, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 CR-428-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 10th OF OCTOBER, 2025
CIVIL REVISION No. 428 of 2025
PRADEEP TIWARI
Versus
VINODINI BHARGAVA (DEAD) THROUGH LRS (I) RAJIV
BHARGAVA AND OTHERS
Appearance:
Shri Akarsh Chaturvedi - Advocate for the applicant through VC
Shri Ankur Maheshwari-Advocate for respondents Nos. 1 and 2.
ORDER
This civil revision under Section 115 of CPC has been filed against
order dated 06.03.2025 passed by 9th Civil Judge, Junior Division, Gwalior
in Regular Civil Suit No. 1134-A/2023 by which respondents have been
substituted as the legal heirs of the sole plaintiff.
2. It is the case of the applicant that plaintiff had filed a suit for
declaration of title, possession as well as for permanent injunction. The suit
was filed through respondent No. 1 as her power of attorney holder. The
plaintiff expired on 29.03.2024 and accordingly, the applicant filed an
application on 05.04.2024 pleading for dismissal of the suit as abated on the
ground that lis does not survive. On 24.07.2024, the respondents filed their
reply to the application filed by the applicant and in said reply they also
prayed that respondents be substituted in place of the deceased-plaintiff as
legal representatives and trial Court by impugned order dated 06.03.2025 has
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allowed the substitution of respondents as legal representatives of the
plaintiff.
3. Challenging the order passed by the Court below, it is submitted by
counsel for the applicant that for seeking impleadment, the respondents
should have filed a separate application under Order 22 Rule 3 CPC, but no
application was filed and only in reply to the application filed by the
applicant they have prayed that they be substituted as legal representatives of
the plaintiff. It is further submitted that even otherwise the reply was also
filed on 24.07.2024 and if the reply is treated as an application, then it was
filed after 90 days of the death of plaintiff. Accordingly, it is submitted that
since the abatement automatically takes place by efflux of time, therefore,
suit had already abated after expiry of 90 days from the date of death of
plaintiff and since no application under Order 22 Rule 9 CPC was filed,
accordingly, trial Court should not have permitted the impleadment of the
respondents in place of the plaintiff.
3. Per contra, counsel for the respondents submits that under the given
circumstances an application under Order 22 Rule 3 CPC can be considered
as composite application for setting aside abatement also and in support of
his contention has relied upon the judgment passed by the Hon'ble Supreme
Court in the case of Omprakash Gupta alias Lalloowa and Ors. v. Satish
Chandra (now deceased) decided on 11th of February, 2025 in Civil Appeal
No.13407/2024. It is submitted that it is true that no application under Order
22 Rule 9 CPC was filed but still this Court can treat the reply as composite
application under Order 22 Rule 3 r/w Rule 9 of CPC also. It is further
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submitted that respondent No. 1, who is the real son of plaintiff, was already
a party to the civil suit in the capacity of the holder of power of attorney on
behalf of the plaintiff. It is true that after the death of principal, the power of
attorney would automatically stand discharged and in that condition the
status of the respondent No. 1 will be that of the legal representative of the
plaintiff and since he was already on record, therefore the suit had not
abated. In reply, counsel for the respondents started making submission on
the merits of the case.
4. Heard the learned counsel for the parties.
5. Although, elaborate submissions were made by the counsel for the
respondents on the merits of the case but this Court is not concerned about
the merits of the case and is concerned about the fact as to whether the
substitution of respondents as legal representatives is in accordance with law
or not. Respondent No.1 is the son of the plaintiff whereas respondent No. 2
is the son of respondent No.1. The suit was filed by the plaintiff through the
power of attorney holder, namely, respondent No. 1. It is true that no separate
application was filed by the respondents for their substitution as legal
representatives of plaintiff on the basis of separate Will executed by the
plaintiff in their favor, but too technical approach is not warranted at this
stage. The litigants are not well conversed with the niceties of law and
generally applications are drafted by the lawyer. It is well established
principle of law that a mistake committed by the lawyer should not make
litigant to suffer, specifically when he has a right to continue the suit in the
capacity of legal representatives. Under these circumstances, this court is of
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the considered opinion that the reply given by the respondents on 24-7-24
which also contained prayer for their substitution as legal representatives can
be considered an application under Order 22 Rule 3 CPC.
6. It is true that whenever suit stands abated by force of law, then an
application under Order 22, Rule 9 should be filed for setting aside
abatement by giving the reasons. If the reply submitted by the respondents is
considered, then it is clear that it does not contain reasons for not filing the
application within 90 days from the date of death of plaintiff. In the present
case, respondent No.1 was already on record in the capacity of power of
attorney and after the death of principle, the power of attorney shall
automatically stands discharged, but it does not mean that the name of the
power of attorney would also get automatically deleted. Had it been a case
that the power of attorney holder was not a legal representative of plaintiff,
then the power of attorney holder would lose all his rights assigned to him by
virtue of power of attorney. Here, once the power of attorney had stood
discharged, then the respondent No.1 can be said to be on record in his
independent right being a legal representative of sole plaintiff. Under these
circumstances, this court is of the considered opinion that the trial court did
not commit any mistake by substituting respondents as legal representatives
of the plaintiff. It is true that Respondent No. 2, who is the son of Respondent
No. 1, has also been impleaded on the basis of some Will executed by the
plaintiff in favor of Respondent No. 1 and 2 and no summary inquiry has
been conducted by the trial Court to verify the correctness of the Will.
Accordingly, the order dated 06.03.2025 is hereby modified and trial Court is
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directed to conduct a summary inquiry into correctness of the Will and if it is
found that the Will could not be proved by respondents No. 1 and 2 , then the
trial Court shall delete name of the respondent No 2 as one of the legal
representatives of plaintiff and shall find out as to whether the plaintiff is
survived by any other legal representative or not ? In case if the Will is not
found to be proved, then all the other surviving legal representatives of
plaintiff shall be substituted as her legal representatives.
7. Let the entire exercise be completed within a period of four months
from today,
8.With aforesaid observations, the civil revision is disposed of.
(G. S. AHLUWALIA)
JUDGE
ar
