Madhya Pradesh High Court
Radhabai vs Jayendrasingh on 16 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:27001
1 CR-68-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
ON THE 16 th OF SEPTEMBER, 2025
CIVIL REVISION No. 68 of 2024
RADHABAI
Versus
JAYENDRASINGH AND OTHERS
Appearance:
Shri Nitin Phadke, learned counsel for the petitioner.
Shri Vinay Gandhi, learned counsel for the respondent [R-1].
ORDER
1) The petitioner has preferred the present petition under Section 115 of
CPC against the order dated 17.01.2024 passed by the learned Ist Additional Judge
to the Court of Ist District Judge, Jaora, District Ratlam in Case RCA No. 43/2019
whereby an application under Section 11 read with Section 151 of CPC filed by
the respondent was allowed.
2) The facts of the case, in short, are that, arises out of a suit was filed by the
original plaintiff Late Harimohan on 06.03.2014 for declaration and permanent
injunction in respect of land bearing Survey No. 1333 area 1.101 hectare situated
at village Piploda, District Ratlam. The same was dismissed by the Trial Court
vide judgment dated 14.09.2019. Against which, an appeal was preferred before
Appellate Court. During the pendency of the aforesaid appeal, the
appellant/original
plaintiff passed away on 05.12.2019, whereupon an application under Order 22
Rule 3 CPC was filed by the respondent No. 1 on 20.02.2020 on the averment that
the appellant had allegedly executed a will in his favour on 28.11.2015 and on the
NEUTRAL CITATION NO. 2025:MPHC-IND:27001
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basis of the alleged will he was the heir of Late Harimohan.
3) Thereafter on 20.02.2022, an application filed by the respondent No. 4
under Order 22 Rule 3 CPC was dismissed as not pressed. However, on
04.05.2023 itself the respondent No. 1 filed another application under Order 22
Rule 4A of CPC for substitution on the averment that in another suit between the
appellant and the respondent No. 2(a) and (b) a compromise had taken place
between the respondent No. 1 and respondent Nos. 2(a) and (b) on the ground that
the respondent No. 1 was entitled to enter into a compromise on the basis of the
alleged will. The respondent No. 1 also filed an application under Section 5 of the
Limitation Act for condonation of delay in filing the application for substitution. In
addition, the petitioner also filed an application under Section 151 CPC for
dismissal of the appeal on the ground that the application for substitution was filed
much after the expiry of period of limitation. Learned Appellate Court after
hearing the arguments on the aforesaid, has passed the impugned order whereby
the application filed by the respondent No. 1 have been allowed and the
respondent No. 1 has been permitted to be substituted in place of the original
appellant as his heir/legal representative while the application filed by the
petitioner under Section 151 CPC has been rejected.
4) Learned counsel for the petitioner has submitted that the impugned order
has been passed without considering the provisions of Order XXII Rule 3, 4-A and
5 of CPC. The Appellate Court has committed a grave illegality in not considering
that the application filed by the respondent No. 1 under Order XXII rule 3 of CPC
was dismissed as not pressed and in such circumstances the appeal was liable to be
dismissed itself. He has also submitted that the Appellate Court has also failed to
consider the settled law that abatement of legal proceeding is automatic in the
absence of filing of the applications for substitution and setting aside abatement.
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On these circumstances, it is prayed that the present petition be allowed and
impugned order be set aside.
5) Learned counsel for the respondent has opposed the prayer and prayed for
dismissal of present revision. He has also prays for liberty to file an appropriate
application before the trial Court under Order XXII Rule 4A of CPC
6) Looking to the facts and circumtances and material evidence placed on
record, this Court finds that the trial Court has committed error in rejecting the
application, therefore, the petition is allowed and the impugned order is hereby set
aside.
7) The matter is remitted back to the trial Court for its re-consideration of
the application, in accordance with law and respondent is also at liberty to file
afresh application under Order XXII Rule 4A of CPC before the trial Court.
8) With the foregoing discussion, this Civil Revision is disposed off with the
directions accordingly.
9) All the pending applications, if any, stand disposed off.
(ALOK AWASTHI)
JUDGE
Vindesh
