Madhya Pradesh High Court
Babulal Kushwaha vs Ramkali Bai & Ors on 2 September, 2022
Author: Atul Sreedharan
Bench: Atul Sreedharan
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
SA No. 427 of 2004
(BABULAL KUSHWAHA Vs RAMKALI BAI & ORS)
Dated : 02-09-2022
Ms. Sanjana Sahni, Advocate for the appellant.
Shri Mohd. Siddiquee, Advocate for the respondent No.2.
Shri S.B. Shrivastava, Advocate for the respondent No.6. This is an admitted appeal of the year 2004.
During the pendency of this appeal, the respondent No.6 died. As steps were not taken by the appellant on time to substitute the L.Rs. of the respondent No.6, an application was filed by the respondents, being I.A. No.9306/2018 for dismissal of the appeal as abated. Upon receiving the said application, the appellants filed I.A. No.13527/2018 for substitution of legal representatives of the deceased respondent No.6 Awadh Narayan.
The office note of 22.02.2020 reflects that L.Rs. of said Awadh Narayan have been served. They are represented in the Court by Shri S.B. Shrivastava, learned counsel. An application, being I.A. No.13528/2018 was filed for setting aside the abatement of the appeal against respondent No.6 on account of his death. An IA in support of the said application for setting aside abatement, under Section 5 of the Limitation Act, was also filed, which is I.A. No.13529/2018. An I.A. being I.A.No.2738/2021 has been filed by the respondent No.2 for vacating the stay order in view of the averments made by them in said application at paragraph No.4.
This order shall dispose off all these applications together. The IA for condonation of delay in filing the application for setting aside the abatement of the appeal, on account of LR's of respondent No.6 stating Signature Not Verified Signed by: PANKAJ NAGLE Signing time: 9/5/2022 10:54:10 AM 2 clearly in paragraph No.2 that the appellants, due to their financially inadequacy and upon the death of original appellant Babulal Kushwaha who left behind only his widow and small children, were living a hand to mouth existence, and the respondent No.6 who passed away was living away at considerable distance from the place of residence of the appellants and therefore, they could not receive information relating to his death on time. The appellants further say in paragraph No.3 that they came to know about the demise of the respondent No.6 only when the respondent filed an application in February 2018 for the dismissal of appeal as abated, which is I.A. No.9306/2018.
In view of what has been stated in I.A. No.13529/2018 with specific reference to paragraph Nos.2 & 3, the said IA. is allowed. The delay is condoned.
Consequently, I.A. No.13528/2018 is allowed and the abatement of the appeal as regard the respondent No.6 is set aside.
As a consequence of which I.A. No.13527/2018 also stands allowed, which is an application for substitution of L.Rs. of the respondent No.6.
Learned counsel for the appellant is requested to make the necessary amendment within 10 days from today.
As a result of the order, I.A. No. 9306/2018 which is an application for dismissal of appeal as abated, is dismissed.
I.A. No.2738/2021 avers in paragraph No. 4 that the appellant and respondent No.6 resided in the same village and the distance was only 300 ft. apart and they were fully aware about the death of the respondent No.6 in the year 2014 itself and they in fact had participated in " Terahavi" ceremony of respondent No.6 and as they knew about the death of respondent No.6 four years before filing of the application for setting aside the abatement, the Signature Not Verified Signed by: PANKAJ NAGLE Signing time: 9/5/2022 10:54:10 AM 3 respondent has questioned the conduct of the appellant and therefore, prayed that the stay order granted at the time of admitting this appeal, be set aside. The averments made in paragraph No. 4 are disputed questions of fact. While the respondent says that the appellant stayed only 300 ft. away from the residence of respondent No.6, there is no admission of this fact by the appellants. In fact, their application for condonation of delay itself reflects that they were unaware about the demise of the respondent No.6, as he stays at a distance.
Under these circumstances, as allegation in paragraph 4 are not verified, I.A. No. 2738/2021 stands dismissed.
The Interim relief granted on earlier shall continue till further orders. List this appeal in due course.
(ATUL SREEDHARAN) JUDGE pn Signature Not Verified Signed by: PANKAJ NAGLE Signing time: 9/5/2022 10:54:10 AM