Madhya Pradesh High Court
Jawahar Singh vs The State Of Madhya Pradesh on 27 August, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1 FA-912-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
FA No. 912 of 2006
(JAWAHAR SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS )
FA/857/2006
(VINOD KUMAR DAKSH VS. STATE OF M.P. AND OTHERS)
Dated : 27-08-2024
In F.A.No.912/2006
Shri Girish Kumar Shrivastava -Advocate for appellants.
Shri Arun Kumar Singh - Advocate for the intervener.
Shri V.K.Dubey - Advocate for the intervener.
Shri Devendra Kumar Singh - Proxy Counsel with Shri Abhishek
Singh - Advocate for respondent No.3.
Shri Dinesh Patel - Deputy Advocate General for the State.
In F.A.No.857/2006Shri Abhishek Singh - Advocate for the appellant.
Shri Girish Shrivastava - Advocate for respondents No.2 to 14. Shri Dhananjay Shukla - Advocate for the respondents No.16 to 23. Shri Dinesh Kumar Patel - Deputy Advocate General for State.
First Appeal No.912/2006 [Jawahar Singh & others Vs. State of M.P.& others] is arising out of Civil Suit No.50-A/2005 [Jawahar Singh and others Vs. State of M.P.] and First Appeal No.857/2006 [Vinod Kumar Dakesh Vs. State of M.P. & others] arises out of Civil Suit No. 49-A/2005 [Vinod Kumar Vs. State of M.P.]. Matter is about 352 acres of land on which name of Government is recorded but appellants in both the cases who are respondents in each other case and are claiming title.
2. Civil Suit Nos.49-A/2005 and 50-A/2005 were decided by the learned Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 27-08-2024 20:04:36 2 FA-912-2006 trial Court [Fifth Additional Judge (Fast Track Court), Satna] vide common judgment dated 31.10.2006. Both the aforesaid first appeals are pending since 2006. While perusing the record of the trial Court for writing judgment, it is seen as under:-
(a) Record of the trial Court is in very brittle/fragile/delicate condition. Since in first appeal as a last Court of facts this court has to peruse the entire pleadings, evidence and documents, which are more than 350 in number and they are in such a condition that just in an attempt to open them they are getting torn and some of them are already in torn pieces and some pieces are missing also, therefore, in order to save further deterioration of record the Registry is directed to scan the entire record of both the appeals including record of trial Court properly and upload the same, including the amended memo of appeal in both the appeals as directed below.
(b) Secondly, it is also seen that in both the appeals parties are common but different age of the parties have been mentioned. For example, in First Appeal No.912/2006 in the memo of appeal the age of Jawahar Singh, Shatrughan Singh and Ramgopal Singh are mentioned as 83 years, 78 years & 73 years respectively, whereas in First Appeal No.857/2006 the age of same persons i.e. respondents- Jawahar Singh, Shaturghan Singh and Ramgopal are mentioned as 60 years, 65 years and 60 years respectively.
Thus, it seems that in First Appeal No.857/2006 their ages have been copied from the judgment of the trial Court whereas age should have been as per the age on the date on which memo of appeal was filed.
(c) Similarly, for example in First Appeal No.912/2006 age of Jaya Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 27-08-2024 20:04:36 3 FA-912-2006 D/o Late Arun Singh who is mentioned at Sr.No.23(B)(ii) has been shown as 14 years (minor) at the time of filing of appeal in year 2006, therefore, she would be a major as of now in the year 2024 and she cannot be represented through her guardian-mother (Smt.Prabha Singh). Both these appeals are having such types of many errors in the cause title of appeals. In First Appeal No.857/2006 the respondent No.23 (Ms.Geeta) a girl aged about 18 years has been mentioned independently whereas respondents No.18 (Ms.Anju Devi), respondent No.20 (Ms.Mamta), respondent No.21 (Ms.Sarita) and respondent No.22 (Ms.Sangeeta) who are aged about 30 years, 24 years, 23 years, & 20 years respectively have been mentioned through natural guardian and it is not stated that whether mother is appearing on the basis of power of attorney on behalf of these respondents.
3. In view of aforesaid, learned counsel for the rival parties in both the appeals need to inspect the record minutely and seek instructions from their respective parties and file appropriate application to correct the age of parties and consequential amendment etc. and get the correct current status of the persons, who were stated to be more than 73 years of age at the time of filing of appeals in year 2006. The persons who are major have to be shown independently and, therefore, such names of parties are required to be corrected as they are entitled to participate in the proceedings independently. All these errors need to be corrected and let learned counsel for both the parties also check 'Vakalatnama' and file appropriate 'Vakalatnama' on behalf of their respective parties, who have become major or in the alternative notices will be required to be sent to them. Let it be remembered Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 27-08-2024 20:04:36 4 FA-912-2006 that cause title in the memo of appeal is very important otherwise later on the then minors who are major by now may come to the Court or file separate suit on the ground that they have not been heard in appeal and no notice was issued to them even when they had become major during pendency of appeal.
4. At the time of arguments it was vehemently argued by counsel for the both the parties that in both the appeals learned trial Court has dismissed the suit (C.S.No.50-A/2005) on the ground that Civil Court did not have the jurisdiction in the matter (Issue No.1). It was also argued that if that was the case, then findings on other issues should not have been given and preliminary issue ought to have been decided first. On perusal of the record in Civil Suit No.50-A/2005 it is seen that Preliminary Issue and other issues were framed on 04.1.2000. The issue No.1 was marked as "Preliminary Issue" regarding jurisdiction but after that many dates were marked for the same purpose i.e. "Arguments on Issue No.1". But on 12.7.2005 both the Civil Suit Nos.50-A/2005 & 49-A/2005 were directed to be consolidated and it was mentioned that since in Civil Suit No.49-A/2005 during trial partial evidence has been recorded and therefore all issues shall be decided together and that order was not challenged by any party therefore, it has become final and hence, the trial Court was within its right and it was required that finding on all issues be given by the trial Court lest appellate Court may take different view on preliminary issue.
5. It is seen in that in F.A.No.912/2006 this Court this Court on 12.4.2012 had directed that it is made clear that interveners and those who Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 27-08-2024 20:04:36 5 FA-912-2006 are impeladed as respondents are only granted an opportunity of hearing and nothing else. Same sort of order was followed on 07.3.2014 wherein it has been directed as under:-
"..............It is undisputed fact on record that the aforesaid respondent No.5 & 6 were impleaded as respondents in the matter in compliance of the order dated 12.4.12 whereby allowing the application AI No.11685/08 filed under Order 1 Rule 10 of the CPC their names were directed to be impleaed for limited purpose to give the opportunity of hearing only in this appeal and not for any other purpose and some observation in this regard have also been made by the co-ordinate bench of this Court in such order."
Similarly, same sort of order was passed on 21.4.2022 which is reproduced below:-
"Heard on I.A.No.535/2022, which is an application under Order 1 Rule 10 of CPC filed by the intervener Naveen Agrawal to implead him as a respondent.
After due consideration, I.A.No.535/2022 is disposed of with the direction that the applicant is free to address the court at the time of final hearing.
Accordingly, the I.A.No.535/2022 is disposed of."
6. Accordingly, in the light of aforesaid background cases are released from being "Heard & Reserved for delivery of Judgment". The parties to file appropriate application to amend the memo of appeal and after correction is carried out let record be scanned by the Registry carefully and upload the same. Generally it is seen that in old first appeals and second appeals record are brittle/fragile and sometimes they are infested with Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 27-08-2024 20:04:36 6 FA-912-2006 termite, therefore, it would be appropriate that before listing of very old cases the concerned Dealing Assistant first check the record thoroughly and if record is brittle/fragile it would be in the fitness of things to get the record scanned first and then list the case for hearing, of course with prior approval from Hon'ble the Competent Authority.
7. List after applications are filed by respective parties to correct the memo of appeal as directed above and after the records is scanned for further hearing including the legal scope of orders dated 12.4.2012, 07.3.2024 and 21.4.2022 in the light of their applications.
8. List accordingly.
(AVANINDRA KUMAR SINGH) JUDGE RM Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 27-08-2024 20:04:36