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2007 Supreme(MP) 122
2008(2) JLJ 228
H.M. Gupta, J.
Shero Prasad v. State of M.P. and others
Second Appeal No. 190 of 2000 (Gwalior) : against the judgment and decree passed by II Additional District Judge, Vidisha, in Civil Appeal No.133-A of 1999, affirming the judgment and decree passed by Additional Civil Judge, Class I, Vidisha, in Civil Suit No.74-A of 1994;
Decided on 5.2.2007.
Rajendra Sagoriya for appellant;
D.R. Sihare, Government Advocate, for State.
Headnote:(1) Civil P.C., 1908 -- O.22 Rr.3 and 10 -- deceased/co-plaintiff sold his share to appellant-plaintiff and one more person -- such person not on record, nor brought on record -- suit abated as a whole and cannot continue.
The learned trial Judge dismissed the applications filed on behalf of the appellant on the ground that malafidely he informed the Court that Pannalal has died without any heirs, he was knowing the fact of his death since very beginning, the application has not been filed on behalf of the legal representatives of deceased Pannalal, the suit has been filed on the basis of the joint ownership, and as the legal representatives of one of the plaintiffs have not been brought on record in time, the suit has been abated. [Para 3
Whether in view of the registered sale-deed executed by the deceased in favour of the plaintiff the suit could be dismissed as abated. [Para 4
Held: Had the appellant been the sole purchaser of the interest of deceased Pannalal, then in that case he being on record, it could have been considered that suit does not abate, as by way of devolution of the interest/share of Pannalal to the appellant, he is on record. But the land is admittedly undivided and both the brothers, appellant and Balaprasad, have also jointly purchased the share of Pannalal in the disputed land, after the death of Pannalal, as the cause of action does not survive to the appellant alone, the suit cannot be continued as provided under Order 22 rule 3 and rule 10 of CPC. 1995(1) MPWN 209 (SC), AIR 1963 SC 553 and 1990(II) MPWN 109 followed. AIR 1995 SC 1852 and 2005(1) JLJ 231 (SC) distinguished. [Para 6A
(2) Limitation Act, 1963 -- S.5 -- application for condonation of delay -- enquiry not necessary when fact is in knowledge of applicant since very beginning.
Shri Sagoria has further contented that conducting an enquiry and providing an opportunity to the appellant to adduce evidence in support of his application under section 5 of the Limitation Act was required.
Held: When there is factual dispute which cannot be decided without conducting an enquiry, this opportunity ought to be given on the request of the party or even otherwise by the Court. But in the present case, as discussed herein above, deceased Pannalal being real uncle, resident of the same village and co-plaintiff of the suit based on joint Patta, this contention of the appellant cannot be accepted that he was having no knowledge about the death and the legal representatives of deceased Pannalal. AIR 1953 Nag. 135, I 994(II) MPWN 6 and 1992(II) MPWN 15 distinguished. [Para 8C
(3) Civil P.C., 1908 -- O.22 Rr.3 and 5 -- Limitation Act, 1963 -- S.5 -- application under O.22 R.3 under consideration -- enquiry as contemplated under R.5 is necessary when there is any dispute as to status of legal representative and not otherwise. [Para 5
(4) Civil P.C., 1908 -- O.22 Rr.3 and 9(2) -- Limitation Act, 1963 -S.5 -- application for bringing LRs of deceased plaintiff on record filed along with application for condonation of delay -- prayer for setting aside the abatement is implicit -- no separate application need be filed. 2004(1) Vidhi Bhasvar 300 and 1999(2) MPLJ 461 relied on. [Paras 7 & 4
¼1½ flfoy izfØ;k lafgrk] 1908 && vk-22 fu-3 ,oa 10 && e`rd@lg&oknh us viuk va‘k vihykFkhZ&oknh rFkk ,d vkSj O;fDr dks foØ; fd;k && og O;fDr vfHkys[k ij ugha Fkk] u vfHkys[k ij yk;k gh x;k && okn iw.kZ :i ls mi‘kfer gks tkrk gS vkSj py ugha ldrkA
fo}ku fopkj.k U;k;ky; us vihykFkhZ dh vksj ls Qkby fd, x, vkosnu bl vk/kkj ij [kkfjt dj fn, fd mlus U;k;ky; dks vln~Hkko ls lwfpr fd;k fd iUukyky dh ykokfjl e`R;q gks xbZ gS] mls mldh ¼iUukyky dh½ e`R;q dh tkudkjh vkjaHk ls gh Fkh] vkosnu e`r iUukyky ds fof/kd izfrfuf/k;ksa dh vksj ls Qkby ugha fd;k x;k gS] okn la;qDr LokfeRo ds vk/kkj ij Qkb fd;k x;k gS rFkk D;ksafd oknhx.k esa ls ,d ds fof/kd izfrfuf/k le; ls vfHkys[k ij ugha yk, x, gSa] okn mi‘kfer gks x;k gSA ¼iSjk 3
D;k e`rd }kjk oknh ds i{k esa fu"ikfnr jftLVªhd`r foØ;&foys[k dh n`f"V ls okn mi‘kfer gksus ds vk/kkj ij [kkfjt fd;k tk ldrk gS\ ¼iSjk 4
vfHkfu/kkZfjr % ;fn vihykFkhZ e`r iUukyky ds fgr dk ,dek= Øsrk gksrk rc] ml n‘kk esa] mlds vfHkys[k ij gksus ds dkj.k] ;g le>k tk ldrk Fkk fd okn mi‘kfer ugha gksrk D;ksafd iUukyky dk va‘k vihykFkhZ dks U;kxr gksus ij og vfHkys[k ij gSA ijarq Hkwfe Lohd`rr% vfoHkkftr gS rFkk nksuksa HkkbZ] vihykFkhZ vkSj ckykizlkn us fooknxzLr Hkwfe esa iUukyky dk va‘k Hkh la;qDr :i ls Ø; fd;k gS] D;ksafd okngsrqd dsoy vihykFkhZ ds i{k esa cpk ugha jgrk] okn flfoy izfØ;k lafgrk ds vkns‘k 22 fu;e 3 vkSj 10 esa micaf/kr fd, x, vuqlkj pkyw ugha jgrkA 1995¼1½ e-iz- ohDyh uksV~l 209 ¼mPpre U;k-½] , vkb vkj 1963 ,l lh 553 rFkk 1990¼2½ e-iz- ohDyh uksV~l 109 vuqlfjrA , vkb vkj 1995 ,l lh 1852 rFkk 2005¼1½ t ,y ts 231 ¼mPpre U;k-½ izHksfnrA ¼iSjk 6,
¼2½ ifjlhek vf/kfu;e] 1963 && /kkjk 5 && foyac dh ekQh ds fy, vkosnu && tk¡p vko‘;d ugha tc rF; vkjaHk ls gh vkosd dh tkudkjh esa gSA
Jh lkxkSfj;k us ;g Hkh ladFku fd;k gS fd tk¡p djuk vkSj vihykFkhZ dks ifjlhek vf/kfu;e dh /kkjk 5 ds v/khu vius vkosnu ds leFkZr esa lk{; is‘k djus dk volj nsuk vk{ksfir FkkA
vfHkfu/kkZfjr % tc rF;kRed fookn gks rks tk¡p fd, fcuk fofuf‘pr ugha fd;k tk ldrk gks] rc i{kdkj ds vuqjks/k ij vFkok U;k;ky; }kjk vU;Fkk Hkh ;g volj fn;k tkuk pkfg,A ijarq izLrqr ekeys esa] tSlk ,rfLeu~iwoZ foospu fd;k x;k gS] e`r iUukyky lxk pkpk] mlh xzke dk fuoklh vkSj la;qDr iV~Vs ds vk/kkj ij okn dk lg&oknh gksus ds dkj.k vihykFkhZ dk ;g ladFku Lohdkj ugha fd;k tk ldrk fd ml iUukyky dh e`R;q vkSj e`r iUukyky ds fof/kd izfrfuf/k;ksa ds ckjs esa dksbZ tkudkjh ugha FkhA , vkb vkj 1953 ukx- 135] 1994¼2½ e-iz- ohDyh uksV~l 6 rFkk 1992¼2½ e-iz- ohDyh uksV~l 15 izHksfnrA ¼iSjk 8lh
¼3½ flfoy izfØ;k lafgrk] 1908 && vk-22 fu-3 ,oa 5 && ifjlhek vf/kfu;e] 1963 && /kkjk 5 && vk-22 fu-3 ds v/khu vkosnu fopkjk/khu && fu-5 ds v/khu ;Fkk vuq/;kr tk¡p rc vko‘;d gksrh gS fof/kd izfrfuf/k dh izkfLFkfr ds ckjs esa dksbZ fookn gks] vU;Fkk ughaA ¼iSjk 5
¼4½ flfoy izfØ;k lafgrk] 1908 && vk-22 fu-3 ,oa 9¼2½ && ifjlhek vf/kfu;e] 1963 & /kkjk 5 && e`r oknh ds fof/kd izfrfuf/k vfHkys[k ij ykus ds fy, vkosnu foyac dh ekQh ds fy, vkosnu ds lkFk Qkby fd;k x;k && mi‘keu vikLr fd, tkus dh izkFkZuk foof{kr gS && i`Fkd~ vkosnu Qkby fd;k tkuk vko‘;d ughaA 2004¼1½ fof/k HkkLoj 300 rFkk 1999¼2½ ,e ih ,y ts 461 voyafcrA ¼iSjk 7 ,oa 4
1. This second appeal has been preferred by appellant-plaintiff No.2 impugning the judgment dated 14th January, 2000 rendered by 2nd Additional District Judge, Vidisha, in Civil Appeal No. 133-N99 by which the learned Judge has affirmed the order of the trial Court dated 15.9.1999 passed in CS No.74-N94 by Additional Civil Judge, Class I, Vidisha, wherein the learned trial Judge has dismissed the applications under Order 1 rule 10, Order 22 rule 3 of CPC and under section 5 of the Limitation Act and in consequence it was concluded that suit has been abated.
2. The brief facts, asrevealed by both the judgments and agreed to by both the learned counsel for the parties, are that appellant Bhero Prasad alongwith deceased Panna1a1 (co-plaintiff) filed one civil suit alleging therein that both the plaintiffs were joint owners of the disputed land on the basis of a joint Patta, granted in favour of them, by the ex -ruler. When respondents No.2 and 3 caused interference in the possession of the appellant and deceased co-plaintiff Panna1a1, copy of the revenue record was obtained and then the appellant came to know on 24.8.1982 that the names of the appellant and Pannalal were deleted from the revenue record, hence, the suit for declaration of title and injunction was filed. These facts were countered by the respondents No.2 and 3 in their written statements in which it was mentioned that the disputed land is Government land of which a Patta has been granted by the Government in favour of the respondents No.2 and 3. During the pendency of the suit, appellant filed an application under Order 1 rule 10(2) of CPC on 3rd of December, 1998 mentioning therein that co-plaintiff Pannalal has died without any other heirs and the appellant is the sole heir, he being on record, the name of Pannalal be ordered to be deleted. In reply, on behalf of respondents No.2 and 3 it was mentioned that Pannalal has died leaving one son and five daughters. Thereafter, the appellant filed two more applications on 11.5.1999; one, under Order 22 rule 3 of CPC and another, under section 5 of the Limitation Act. In the applications, it has been mentioned that co-plaintiff Pannalal had left the village for the last 7-8 years, now he is dead, his LRs be taken on record and vide reply filed by respondents No.2 and 3 of the application under Order 1 rure 10 as above, he came to know that Panna1al has died leaving some LRs behind him, hence, the delay is required to be condoned. Both the applications were supported by the affidavit of the appellant. Both these applications were opposed by the respondents No.2 and 3 by filing reply dated 22.7.1999 on the ground that deceased Pannalal has died before two years and this fact was in the notice of the appellant. In view of this, the suit has been abated.
3. Vide order dated 15th September, 1999 the learned trial Judge dismissed the applications filed on behalf of the appellant on the ground that malafidely he informed the Court that Pannalal has died without any heirs, he was knowing the fact of his death since very beginning, the application has not been filed on behalf of the legal representatives of deceased Pannalal, the suit has been filed on the basis of the joint ownership, and as the legal representatives of one of the plaintiffs have not been brought on record in time, the suit has been abated. This order has been affirmed by first appellate Court vide its impugned judgment dated 14.1.2000 as mentioned in para No.1.
4. Vide order dated 4.3.2003 this appeal was admitted for final hearing on the following three substantial questions of law:
1. Whether application under Order 22 rule 3 CPC alongwith application under section 5 of the Limitation Act could be dismissed without holding enquiry as contemplated under Order 22 rule 5 CPC?
2. Whether in view of the registered sale-deed executed by the deceased in favour of the plaintiff the suit could be dismissed as abated?
3. Whether the prayer for setting aside judgmen
