Chattisgarh High Court
Jhakharu vs Dukalu @ Vishnushankar on 6 February, 2023
1
HIGH COURT OF CHHATTISGARH, BILASPUR
MCC No. 1116 of 2019
1. Jhakharu S/o Jogiram Nishad Aged About 50 Years R/o Village Ghaghara,
Tahsil And Police Station Kharsiya, District Raigarh, Chhattisgarh, District :
Raigarh, Chhattisgarh
2. Minor Kumari Shanti D/o Jhakharu Nishad Aged About 13 Years Minor
Through Legal Natural Guardian Jhakharu Nishad , R/o Village Ghaghara,
Tahsil And Police Station Kharsiya, District Raigarh, Chhattisgarh.,
District : Raigarh, Chhattisgarh
3. Minor Sant Kumar S/o Jhakharu Nishad Aged About 8 Years Minor
Through Legal Natural Guardian Jhakharu Nishad , R/o Village Ghaghara,
Tahsil And Police Station Kharsiya, District Raigarh, Chhattisgarh. ( All Are
Caste Kewant , Appellant No. 1 Is Disable, Appellant No. 2 And 3 Are
Student ), District : Raigarh, Chhattisgarh
---- Applicants
Versus
1. Dukalu @ Vishnushankar S/o Ranchhor Rathore Aged About 37 Years
Occupation Cultivator, R/o Village Ghaghara, Tahsil And Police Station
Kharsiya, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh
2. C S P D C L Through Executive Engineer, Division Raigarh,, District :
Raigarh, Chhattisgarh
---- Respondents
For Appellants : Shri Rajeev Shrivastava, Senior Advocate appears as Amicus curiae along with Shri Shailendra Sharma, Advocate.
For Respondent/State : Ms. Astha Shukla, Government Advocate Hon'ble Shri Justice Goutam Bhaduri Hon'ble Shri Justice N.K. Chandravanshi Order On Board By Hon'ble Shri Justice Goutam Bhaduri 06/02/2023
1. Heard on instant MCC.
2. A civil suit was flied by Jhakaru and two minors for death of their mother Smt. Basnati Bai, wherein one Dukalu @ Vishnushankar was a defendant. 2 Allegation in the suit was that because of the illegal laying down of electricity line by Dukalu, Smt. Basanti Bai came in contact of such line and was got electrocuted. Therefore, a civil suit was filed which was decided by the Second Additional District Judge, Raigarh (C.G.) in Civil Suit No.B/1/2017. The Civil suit was filed for damages. The suit was dismissed on 29-03-2019. In such Civil Suit, Rs. 12,10,000/-, a compensation was claimed for.
3. The Civil Suit having been dismissed on 29-03-2019, an appeal was filed which was numbered as FA No.357 of 2019. The Division Bench of this Court by its order dated 16-09-2019 observed that since the submission is made that the appellants are not able to pay the Court fees as an indigent person, they were granted time to file application to prosecute this appeal as forma pauper. Thereafter, the order sheet dated 21-10-2019 would show that since the application for forma pauper under order 44 Rule 1 of CPC was filed which was directed to be registered as MCC and by order dated 03-12-2019, the Court ordered that FA No.357/2019 be converted as a MCC. Consequently, the MCC No.1116/2019 surfaced. During the pendency of the MCC, the particulars of the assets of the appellant were called for from the State and the State vide order dated 17-03-2020, stated that the appellants are laborer and entire earning of the family is Rs.41,000/- per annum. Therefore the income of appellant would show that they are not possessed with sufficient means to raise the requisite Court fees.
4. This Court in separate appeal of the like nature in FA No.63/2021 in between Chhattisgarh State Power Distribution Company Limited Vs. Smt. Hemlata Netam held that when the death caused due to electrocution and the leakage, it would amount to escape of dangerous ingredients of 3 electricity and the Court fees would not be payable in the appeal in view of the notification of State F.No.9-2-86-B-XXI dated 02-08-1986 which exempts payment of Court fees under certain circumstances. In any case apart from the fact that report of the State is on record that appellants are person without sufficient means to raise Court fees and further, Division Bench of this Court has held that the Court fees would not be payable in the appeal of like nature. We are of the view that the FA No.357/2019 would be maintainable even in absence of the Court fee.
5. As a further development during pendency of the MCC, since the death was caused by the electrocution, an application was filed by the appellant to implead the C.S.P.D.C.L who provides electricity as a party and they were added in the MCC. The addition would have a consequence upon the first appeal being newly added party. After going through the entirety of the facts, since the cause of death was due to electrocution and C.S.P.D.C.L. who provides the electricity would otherwise also be a necessary party to adjudicate the issue. The appellant Nos.2 & 3 who lost their mother on 30-06-2015 were minors and wife of appellant No.1 cannot be left at lurch to sheve the actual justice which they are otherwise entitled and cannot be deprived only on the basis of technicalities. Since, C.S.P.D.C.L was not made a party in the suit and they are directed to be added as a respondent in the civil suit as they are added in MCC during hearing of appeal, it is therefore directed that the necessary amendment be carried out in civil suit to add them as respondent. As C.S.P.D.C.L. was not heard before the trial Court in order to advance the cause of justice on merits and provide a fair opportunity of hearing to C.S.P.D.C.L., specially in view of the issue Nos. 4 & 5, which touches upon us to whether the electricity department would be a necessary party or not, we deem it 4 proper to remand back the case to the Court of Additional District Judge, Raigarh (C.G.). The Additional District Judge, Raigarh shall provide opportunity to file reply to C.S.P.D.C.L. and further shall also provide parties to the suit an opportunity to amend their pleading. Thereafter, it would be open to the parties to lead the evidence afresh, so as to adjudicate the civil suit afresh.
6. In view of such observation made, I.A. No.5/2023, application under order 1 Rule 10 read with Section 151 of CPC for deleting respondent No.2 from array of parties is disposed off. The parties shall appear before the District Judge, Raigarh on 28-03-2023. The learned District Judge is requested to make all endeavor to dispose of the case within a further period of six months from that date.
7. Accordingly, the instant MCC stands disposed of.
SD/- SD/-
(Goutam Bhaduri) (N.K.Chandravanshi)
Judge Judge
Amardeep