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IN THE HIGH COURT OF MADHYA PRADESH
Vishal Dhagat and Smt. Anuradha Shukla, JJ.
Premvati Patel @ Asha Patel (Correct and Real Name is Smt. Asha Patel w/o Ashok Kumar Patel) v. Ashok Kumar Verma
First Appeal No. 838 of 2025 (Jabalpur): against the ex parte judgment and decree dated 6.4.2015 passed by the 1st Additional Principal Judge, Family Court, Jabalpur in Civil Suit No. 66-A/2014; Decided on 8.9.2025
(1) Hindu Marriage Act, 1955 -- Ss. 13 and 21 -- difference between petition and plaint explained -- applicability of Civil P.C. 1908 -- S. 13 deals with request for dissolution of marriage as petitions -- same are based on personal laws -- CPC is applicable to proceedings. [Para 7]
(2) Civil P.C. 1908 -- O. 22 Rr. 4A and 4(4) -- Hindu Marriage Act, 1955 -- S. 13 -- Family Courts Act, 1984 -- S. 19 -- applicability of O. 22 R. 4A of CPC to divorce proceeding -- application under O. 22 R. 4A of CPC filed by appellant for appointment of Administrator General to contest appeal on behalf of deceased respondent -- held -- said request cannot be granted as appellant mentioned in application u/s. 5 of Limitation Act that persons occupying the house of deceased spouse did not allow her to enter house -- this means that property of deceased has devolved upon persons who are staying in the house and they are legal representatives -- respondent has legal representatives, therefore, provision of O. 22 R. 4A of CPC not attracted -- said provision is applicable in cases where deceased person does not have any legal representatives -- held further -- O. 22 R. 4(4) of CPC also not applicable as exemption to substitute legal representatives can be granted in cases where defendant failed to file written statement -- respondent was plaintiff and he contested suit -- held further -- appellant ought to have sought permission of Court to continue appeal against legal representatives of deceased -- appeal was filed on 15.5.2025 -- respondent expired on 7.12.2024 -- appeal is filed against a dead person -- not maintainable. [Paras 8, 11 & 12
(3) Abatement -- matrimonial proceedings -- proceeding in matrimonial matter will not abate because party died after obtaining decree of divorce -- cause of action in respect of proprietary rights will survive against property or estate of deceased which is being dealt with by legal representatives of deceased spouse -- such legal representatives can be joined as party in appeal or in proceedings under O. 9 R. 13 of CPC -- cause of action in respect of snapping of ties of marriage, i.e., dissolution of marriage is personal to a party and same will come to an end -- no litigation will survive after death of one spouse if surviving spouse is not interested to make any claim over any estate or to any inherit property of deceased. (1997) 11 SCC 159 followed. [Para 9]
(4) Civil P.C. 1908 -- O. 22 Rr. 4(4) and 4A -- mention of wrong provision -- appellant wants restoration of her status as wife so that she may make a claim over property of deceased/husband -- filed application under O. 22 R. 4(4) though her prayer is in accordance with O. 22 R. 4A -- held -- subject-matter of application is to be considered on basis of facts mentioned in application and not by law mentioned -- application treated to be under O. 22 R. 4A. [Para 10]
¼1½ fganw fookg vf/kfu;e] 1955 & /kkjk 13 rFkk 21 & vthZ rFkk okni= ds e/; varj Li"Vh—r fd;k x;k & flfoy çfØ;k lafgrk] 1908 ykxw gksuk & fookg ds fo?kVu ds fy, vuqjks/k dks /kkjk 13 esa vthZ ekuk x;k gS & og Loh; fofèk ij vk/kkfjr gksrh gS & dk;Zokgh dks flfoy çfØ;k lafgrk ykxw gksrh gSA ¼iSjk 7½
¼2½ flfoy çfØ;k lafgrk] 1908 & vkŒ 22 fuŒ 4d rFkk 4¼4½ & fganw fookg vf/kfu;e] 1955 & /kkjk 13 & dqVqac U;k;ky; vf/kfu;e] 1984 & /kkjk 19 & fookg&foPNsn dk;Zokgh dks flfoy çfØ;k lafgrk dk vkŒ 22 fuŒ 4d ykxw gksuk & e`r çR;FkhZ dh vksj ls vihy dk fojks/k djus ds fy, egkç'kkld fu;qä fd, tkus gsrq vihykfFkZuh }kjk flfoy çfØ;k lafgrk ds vkŒ 22 fuŒ 4d ds v/khu vkosnu fd;k x;k & vfHkfu/kkZfjr & mä vuqjks/k Lohdkj ugha fd;k tk ldrk D;ksafd Lo;a vihykfFkZuh us ifjlhek vf/kfu;e dh /kkjk 5 ds v/khu vkosnu esa mYys[k fd;k fd e`r ifr ds ?kj ij vf/kHkksx j[kus okys O;fä;ksa us mls ?kj esa ços'k ugha djus fn;k & bldk rkRi;Z gS fd e`rd dh laifÙk mu O;fä;ksa dks U;kxr gks xbZ gS tks ?kj esa fuokljr gSa rFkk og fof/kd çfrfuf/k gSa & çR;FkhZ ds fof/kd çfrfuf/k gSa blfy, flfoy çfØ;k lafgrk ds vkŒ 22 fuŒ 4d dk mica/k vkdf"kZr ugha & mä mica/k mu ekeyksa esa ykxw gksrk gS tgk¡ e`r O;fä ds fofèkd çfrfuf/k ugha gksrs vkxs vfHkfu/kkZfjr & flfoy çfØ;k lafgrk dk vkŒ 22 fuŒ 4¼4½ Hkh ykxw ugha gksrk D;ksafd fof/kd çfrfuf/k;ksa dks çfrLFkkfir djus ls NwV mu ekeyksa esa nh tk ldrh gS tgk¡ çfroknh us fyf[kr dFku çLrqr ugha fd;k & çR;FkhZ oknh Fkk rFkk mlus okn yM+k Fkk & vkxs vfHkfu/kkZfjr & vihykfFkZuh dks e`rd ds fof/kd çfrfuf/k;ksa ds fo:) vihy pykus ds fy, U;k;ky; dh vuqefr dh bZIlk djuk pkfg, Fkh & vihy 15-5-2025 dks çLrqr dh xbZ & çR;FkhZ dk nsgkolku 7-12-2024 dks gks x;k Fkk & vihy e`r O;fä ds fo:) çLrqr dh xbZ pyus ;ksX; ughaA ¼iSjk 8] 11 ,oa 12½
¼3½ mi'keu & nkaiR; dk;Zokgh & i{kdkj dh e`R;q fookg&foPNsn dh fMØh vfHkçkIr djus ds i'pkr~ gksus ij nkaiR; ekeyksa esa dk;Zokgh mi'kfer ugha gksxh & lkaifÙkd vf/kdkjksa ds laca/k esa okn gsrqd e`rd dh ml laifÙk ;k laink ds ifjçs{; esa cpk jgsxk ftldh ns[kHkky e`r ifr@iRuh ds fof/kd çfrfuf/k;ksa }kjk dh tk jgh gS & ,sls fof/kd çfrfuf/k;ksa dks flfoy çfØ;k lafgrk ds vkŒ 9 fuŒ 13 ds v/khu vihy ;k dk;Zokgh esa i{kdkj cuk;k tk ldrk gS & fookg ca/ku ds VwVus ls vFkkZr~ fookg ds fo?kVu ls lacaf/kr okn gsrqd oS;fäd gksrk gS vkSj og lekIr gks tk,xk & ;fn mÙkjthoh ifr@iRuh dh e`rd dh fdlh laink ij nkok djus ;k laifÙk fojklr esa çkIr djus esa :fp ugha gS rks ifr@iRuh dh e`R;q ds mijkar dksbZ eqdnek ugha cpsxkA ¼1997½ 11 ,llhlh 159 vuqlfjrA ¼iSjk 9½
¼4½ flfoy çfØ;k lafgrk] 1908 & vkŒ 22 fuŒ 4¼4½ rFkk 4d & xyr mica/k dk mYys[k & vihykfFkZuh iRuh ds :i esa viuh çkfLFkfr dk çR;korZu pkgrh gS rkfd og e`rd@ifr dh laifÙk ij nkok dj lds & vkŒ 22 fuŒ 4¼4½ ds v/khu vkosnu fd;k] ;|fi mldh çkFkZuk vkŒ 22 fuŒ 4d ds vuq:i gS & vfHkfu/kkZfjr & vkosnu dh fo"k;oLrq ij fopkj vkosnu esa mfYyf[kr rF;ksa ds vkèkkj ij fd;k tkuk gksrk gS] mfYyf[kr fof/k ds vuqlkj ugha & vkosnu vkŒ 22 fuŒ 4d ds v/khu ekuk x;kA ¼iSjk 10½
ORDER
Dhagat -- 1. Appellant has preferred this appeal under section 19 of Family Court Act, 1984 challenging ex-parte judgment and decree dated 6.4.2015 passed by First Additional Principal Judge, Family Court, Jabalpur in Civil Suit No.66-A/2014, by which marriage dated 8.6.1990 between appellant and respondent was dissolved.
2. Appellant had filed I.A.No.10351/2025 under Order 22 rule 4(4) of CPC, wherein prayer is made to appoint any person to contest appeal on behalf of deceased respondent.
3. It is submitted by counsel appearing for appellant that respondent had died on 7.12.2024. There is no legal heir to contest the case and appeal is personam in nature, therefore, one person may kindly be appoint under Order 22 rule 4(4) of CPC to contest the case. Counsel appearing for appellant placed reliance on order 22 rule 4(A) of CPC and submitted that when a party died during pendency of suit and has no legal representative, the Court on application of any party to a suit may proceed in absence of a person representing the estate of deceased person or may by order appoint administrator general or any officer of the Court to represent estate of deceased person for purpose of suit. It is also argued by counsel that provisions of Order 22 of CPC are not applicable in the case of divorce proceeding. Divorce proceeding is not a suit. Plaint is not filed before Court, but petition under section 13 of Hindu Marriage Act, 1955 is filed. Appeal may not abate and Court is also at liberty to apply Order 22 rule 4A of CPC and appoint administrator general or any other officer of the Court to contest the case. Since decree of divorce has been granted against appellant, therefore, appellant will not be entitled to claim property of deceased.
4. Heard counsel for the appellant.
5. Counsel for appellant is making two adverse arguments before this Court. On one hand he is making a prayer that Court may pass order under Order 22 rule 4A of CPC for appointing administrator general to represent the estate of deceased. On the other hand he is making a prayer that Order 22 of CPC is not applicable in divorce petition and same is not a suit or a plaint.
6. Considered issues raised by counsel appearing for appellant.
7. Petition is a formal request before Government or any other authority in power for any specific action. Said petition may be signed by one person or many. Writ Petitions are filed under Article 226 of Constitution of India for issuing writs. Party makes a prayer before High Court for issuing various writs under Article 226 of constitution of India. Formal request is made to the High Court and orders are passed by High Court on basis of affidavits filed and considering the law. Direction, order, writ is passed by the High Court. On other hand when any prayer is made before civil Court for any relief based on civil rights under substantive civil laws, then said request is designated as a plaint. Judgment is passed on said cases and decree is prepared on basis of judgment. It is decree of the Court which is enforceable and said judgment and decree are appealable under section 96 of CPC. Relief may be granted under substantive act, but procedure is determined in civil cases under CPC. However, in Writ Petition CPC is not applicable and High Court decides petition filed before it after giving opportunity of hearing to both the parties on basis of fundamental rights and other laws of the land. Procedure followed by High Court is to provide opportunity of hearing to all the parties and decide the case on basis of affidavits and law. High Court give directions, orders or passes Writ in the cases. Request made before Family Court for dissolution of marriage is termed as petition under section 13 of Hindu Marriage act, 1955. In said cases procedure as laid down in CPC is followed and judgment and decree is prepared. Judgment and decree are made appealable under the law i.e. Hindu Marriage Act, 1955 and Family Court Act, 1984. Cases are also reg
A party must produce original documents such as a 'Will' to substantiate their claim for legal representation in a proceeding; failure leads to dismissal of the application.
The main legal point established in the judgment is that the provisions of Order 22 of CPC are procedural and should not curtail the substantial rights of the parties. The Court emphasized the applic....
A decree passed against a deceased party is null and void; proper procedure under Order 22 CPC must be followed to avoid automatic abatement.
The determination of legal representatives under Order XXII Rule 5 is a summary inquiry focused on representation in the suit, not on resolving inheritance rights.
A decree against a deceased party is void; however, the legal heirs have the discretion to treat it as valid or challenge it, as reaffirmed by the court.
Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/ plaintiff could be non-suited on this ground.
Procedural rules under O.22, CPC should advance justice and not penalize parties for minor delays.
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