Back
2016 Supreme(MP) 84
MADHYA PRADESH HIGH COURT
Rohit Arya, J.
Om Prakash Gupta (Dr.) v. Shri Shanti Grih Nirman Sahakari Sanstha Maryadit, Gwalior and others
Review Petition No.105 of 2014 (Gwalior) : against order dated 19.2.2014, passed by Hon’ble Single Judge, M.P. High Court, Gwalior; Decided on 16.2.2016.
K.S. Tomar with Sanjay Singh Tomar for petitioner;
Amit Lahoti for respondent.
Headnote:Civil P.C., 1908 -- O.22 R.10 and O.47 R.1 -- review of order of withdrawal -- after substitution of respondent society as appellant in place of applicant -- applicant maintained blissful silence -- neither objected it nor challenged this order -- such order attained finality and once his name deleted from array of appellants by Court -- appellant cannot claim to have any locus standi to maintain this application seeking review -- review petition miserably misconceived -- dismissed.
Held : There is no dispute about the fact that after substitution of respondent society as the appellant in place of the applicant herein (Om Prakash Gupta) on 22.3.2012, the applicant has maintained blissful silence and has never objected to it and has never challenged the order dated 22.3.2012. Once, his name was deleted from the array of appellants and substituted by that of respondent-Society, the applicant cannot claim to have any locus standi to maintain this application seeking review of the order passed on 19.2.2014 wherein the appeal was permitted to be withdrawn.
flfoy izfØ;k lafgrk] 1908 && vk-22 fu-10 rFkk vk-47 fu-1 && izR;kgj.k ds vkns'k dk iqufoZyksdu && izR;FkhZ lkslkbVh dk vkosnd ds LFkku ij vihykFkhZ ds :i esa izfrLFkkiu ds i'pkr~ && vkosnd us lq[kn ekSu cuk, j[kk && uk rks blesa vkifÙk dh vkSj u bl vkns'k dks vk{ksfir fd;k && ,sls vkns'k us vafrerk izkIr dj yh rFkk ,d ckj mldk uke vihykFkhZx.k dh lwph ls U;k;ky; }kjk gVk fn;k x;k && vkosnd iqufoZyksdu pkgrs gq, ;g vkosnu cuk, j[kus ds fy, lqus tkus dk dksbZ Hkh vf/kdkj j[kus dk nkok ugha dj ldrk && iqufoZyksdu ;kfpdk dks cqjh rjg ls xyr le>k x;k gS && [kkfjtA
vfHkfu/kkZfjr % bl rF; ds ckjs esa dksbZ fookn ugha fd izR;FkhZ lkslkbVh dk vkosnd blesa ¼vkse izdk'k xqIrk½ ds LFkku ij 22-3-2012 dks vihykFkhZ ds :i esa izfrLFkkiu ds i'pkr~ vkosnd us lq[kn ekSu cuk, j[kk rFkk blesa dHkh vkifÙk ugha dh rFkk vkns'k fnukad 22-3-2012 dHkh vk{ksfir ugha fd;kA ,d ckj] mldk uke vihykFkhZx.k dh lwph ls gVk fn;k x;k rFkk ml izR;FkhZ lkslkbVh }kjk izfrLFkkfir fd;k x;k] vkosnd vkns'k ikfjr fnukad 19-2-2014 ftlesa vihy okil ysus ds fy, vuqKk nh xbZ] dk iqufoZyksdu pkgrs gq, ;g vkosnu cuk, j[kus ds fy, lqus tkus dk dksbZ Hkh vf/kdkj j[kus dk nkok ugha dj ldrkA
1. Heard.
2. This review petition has been filed by one Dr. Om Prakash Gupta, seeking review of the order passed in First Appeal No.14/2005 on 19.2.2014 whereby the appeal was permitted to be withdrawn.
3. Shri O.P. Gupta had originally filed the aforesaid first appeal as the appellant.
4. On notice, respondents were represented. During the pendency of appeal an I.A. No.1109/2008 was filed under Order 22 rule 10 of CPC at the instance of one Shree Shanti Grih Nirman Sahakari Sanstha Maryadit Gwalior (hereinafter referred to as “the Society”) through Advocate Shri Sanjeev Jain on 17.1.2008 with the prayer that the said Society be substituted for appellant and leave of the Court was sought to continue and prosecute the appeal on the premise that vide two sale-deeds dated 19.3.2004 the appellant had transferred the land in question in favour of the society, after same having fallen to his share in partition among the members of the family. Therefore, the society has acquired right, title and interest to the suit property in question. This application was supported by an affidavit of the President of the Society Sambhav Jain son of Haris Chand Jain with following prayer:-
vr% izkFkZuk gS fd vkosnd laLFkk }kjk vkosnu&i= Lohdkj fd;k tkdj vkosnd laLFkk dks vihykaV ds LFkku ij izfrLFkkfir fd;k tkdj vihykaV dUVhU;w djus dh vuqefr iznku fd, tkus dh d`ik dh tk,A
5. Reply to this application was filed on 1.2.2008 whereunder prayer was made for dismissal of the application on the premise that only limited part of his ownership and possession of the suit property has been transferred and not the entire suit property in favour of the applicant and 2750 sq.ft still remains with applicant Shri O.P. Gupta. Therefore, the purchaser cannot claim absolute right in respect of sold property.
6. With the aforesaid pleadings, application sought to be dismissed.
7. It appears that the aforesaid application was taken up for consideration by this Court on 22.3.2012 in presence of the counsel for O.P. Gupta; the then appellant. The IA was considered and allowed.
8. Consequent upon the order passed on 22.3.2012 the appeal memo was amended and Shree Shanti Grih Nirman Sahakari Sanstha Maryadit Gwalior was substituted for the then appellant Dr. Om Prakash Gupta. Thereafter appeal has been taken up for consideration on various dates for different purposes.
9. As such, on and from 22rd March, 2012, O.P. Gupta the applicant herein, ceased to be appellant in the First Appeal No.14/2005, during this period on various dates of hearing respective counsel appeared on behalf of appellant.
10. It appears that Shri Amit Lahoti, Advocate filed Vakalatanama on behalf of appellant-Society on 13.1.2014 and application for withdrawal of appeal (I.A. No.840/14) was filed on 19.2.2014 along with affidavit of Shri Sambhav Jain, President of the Society. Copy thereof has also been given to Shri J.S. Kaurav, Advocate. This IA was taken up for consideration on 19.2.2014. No reply to the aforesaid IA was filed. On 19.2.2014, Shri Amit Lahoti, Advocate has appeared for the appellant and one Shri S.K. Jain, Advocate appeared for the respondents. The application for withdrawal of appeal in absence of opposition was allowed and appeal was dismissed as withdrawn.
11. Shri O.P. Gupta, the applicant has now filed this review petition on 12.3.2014 through an advocate Shri J.S. Kaurav seeking review of order dated 19.2.2014. Shri K.S. Tomar, senior Advocate assisted by Sanjay Tomar Advocate submits that since he had never agreed for substitution of respondent-society as the appellant in first appeal, for the reason stated in reply to I.A. No.1109/2008, hence the Society could not have been allowed to be substituted by order dated 22.3.2012 and, therefore, withdrawal of appeal by substituted appellant-Society, allowed by this Court on 19.2.2014, is bad in law. Hence, the same deserves to be reviewed and appeal be restored to its original number.
12. Per contra, learned counsel for respondent N
