Madhya Pradesh High Court
Ramgopal Kachhi vs Smt Radha Bai @ Chhoti Bai Kanojiya on 14 July, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 14 th OF JULY, 2023
FIRST APPEAL No. 1237 of 2023
BETWEEN:-
RAMGOPAL KACHHI S/O LATE BABADEEN KACHHI,
AGED ABOUT 70 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE KURADIYA GAURNADI
JAMTARA MODH JABALPUR DISTRICT JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY MS. SHRADDHA VERMA, ADVOCATE)
AND
1. SMT RADHA BAI @ CHHOTI BAI KANOJIYA W/O
RAMDEEN KANOJIYA, AGED ABOUT 64 YEARS,
R/O 4433 SANJAY NAGAR DURGA CHOWK POLICE
STATION ADHARTAL JABALPUR (MADHYA
PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
DISTRICT PRESIDENT JABALPUR DISTRICT
JABALPUR (MADHYA PRADESH)
3. RAMSIYA @ MAKKU S/O BABADEEN
KUSHAWAHA, AGED ABOUT 65 YEARS, R/O
VILLAGE KURADIYA, JAMTARA MODH, NEAR
CHURCH, P.S. BARELA, JABALPUR DISTRICT
JABALPUR (MADHYA PRADESH)
4. SHIV NARAYAN S/O BABADEEN KUSHAWAHA,
AGED ABOUT 59 YEARS, R/O VILLAGE KURADIYA,
JAMTARA MODH, NEAR CHURCH, P.S. BARELA,
JABALPUR DISTRICT JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY MS. SHAKTI TRIPATHI, PANEL LAWYER FOR RESPONDENT-STATE)
This appeal coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 7/17/2023
5:50:07 PM
2
following:
ORDER
This first appeal has been preferred by the appellant/plaintiff challenging the final order dtd. 07.02.2023 passed by 15th District Judge, Jabalpur in Civil Suit No. 4-A/14 whereby for want of application under Order 22 Rule 4 CPC for substitution of legal heirs in respect of death of defendant 2-Ramdeen, the suit has been dismissed as abated against all the defendants.
2. Learned counsel for the appellant/plaintiff submits that in the civil suit contesting party was Smt. Radha Bai-defendant 1 and even after death of defendant 2-Ramdeen Kanojiya, who was husband of defendant 1, no abatement took place. Learned counsel further submits that in the aforesaid circumstances, the plaintiff wanted to delete the name of defendant 2, but the learned Court did not accept the application for deleting the name and resultanlty dismissed the suit as having abated, whereas in presence of defendant 1, who is wife and first class legal heir of the deceased defendant 2, the suit had not abated. In this regard, learned counsel placed reliance on the decision of Supreme Court in the case of Smt. Gema Coutinho Rodrigues, v. Bricio Francisco Pereira and others AIR 1994 SC 1199, relevant paragraphs 5 & 6 are quoted as under:-
"5. It appears that the son namely Mr Cancio Coutinho who is stated to be the brother of the appellant died before the filing of the suit on October 19, 1972. After the filing of the suit the appellant's father on whose behalf a suit had been filed died on July 14, 1974 but no application was filed for bringing on record the legal heirs of the father since the mother (wife of the deceased father) was also the legal heir, already on the record. It appears that the mother on whose behalf the suit had also been filed and continued died on January 18, 1978 and the appellant who is the daughter filed an application on April 11, 1978 under Order 1 Signature Not Verified Rule 10(1) read with Order 22 of Code of Civil Procedure for Signed by: KUMARI PALLAVI SINHA Signing time: 7/17/2023 5:50:07 PM 3 bringing on record the appellant herself as legal heir of the mother. This application was filed on April 11, 1978 but the trial court by its order dated March 19, 1979 dismissed the application in the view that once one of the plaintiffs died all his successors ought to be made parties to proceed with the suit and the applicant is not entitled to proceed with the suit alone in her own name. The High Court agreed with the trial court and dismissed the revision petition filed by the appellant by the impugned order dated January 11, 1983.
6. It appears that the gift deeds were made by deceased brother's brother-in-law in pursuance of power of attorney in his favour. So long as one of the heirs has been brought on record who substantially represented estate of deceased plaintiff, the application could not be dismissed on the ground that the suit has abated or it could not proceed. Trial court should have directed the appellant to implead other heirs if any, of the deceased mother who was also a party to the suit by way of defendants. But the application for being brought on record by the appellant could not have been rejected. We, accordingly, set aside the order of the trial court dated March 19, 1979 as well as the order of the High Court dated January 11, 1983 and direct the trial court to bring the appellant on record as legal heir of the deceased plaintiffs and permit the appellant to implead any other heirs as co-defendants."
3. As such, in my considered opinion, in view of the fact that one of the legal representatives of defendant 2 i.e. his wife Smt. Radha Bai was already on record as defendant 1, the suit could not be said to have abated and the learned Court below has erred in dismissing the suit as having abated.
4. However, learned counsel for the appellant/plaintiff in the light of decision of Division Bench of this Court in the case Parmanand v. Indira Bai and others 1971 JLJ SN 49, prays for grant of opportunity to file requisite applications for substitution of legal representatives of defendant 2 as well as for setting aside Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 7/17/2023 5:50:07 PM 4 abatement and condonation of delay before the Court below.
5. Prayer being legal and reasonable is accepted and by setting aside the impugned order this first appeal is allowed and disposed off with the aforesaid liberty and with the further direction to learned Court below that in case of filing of such applications by the appellant/plaintiff within 15 days, the learned Court shall decide the same in accordance with the law and shall proceed to decide the suit on merits.
6. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL) JUDGE Pallavi Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 7/17/2023 5:50:07 PM