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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 28th OF AUGUST, 2023
CIVIL REVISION No. 400 of 2021
BETWEEN:-
MAZID BEG (DEAD) THR. ARKEY INVESTMENT PVT.
LTD THR. ITS DIRECTOR MANOJ GARG, S/O SHRI J.P.
GARG, R/O 16, AMAR STAMBH, PRESS COMPLEX, M.P.
NAGAR ZONE-1, BHOPAL (MADHYA PRADESH)
.....APPLICANT
(BY SHRI RAJESH PANCHOLI, ADVOCATE)
AND
1.
SMT. SUBHASHINI PANDEY W/O LATE COL.
UMESHCHAND PANDEY
2.
ABHNAV PANDEY S/O LATE COL.UMESHCHAND
PANDEY
3.
SMT.MANJU BAJPAI W/O BRIGADIER ARUN
BAJPAI
4.
ANURAG BAJPAI S/O BRIGADIER ARUN BAJPAI
RESPONDENTS 1-4 ARE R/O E-3/28, ARERA
COLONY, BHOPAL (MADHYA PRADESH)
5.
SMT. KAMLA JOSHI W/O CHANDRASHEKHAR
JOSHI, AGED ABOUT 52 YEARS, R/O E2/355 ARERA
COLONY, BHOPAL (MADHYA PRADESH)
6A.
PRAHALAD
DASJI
GOYAL
S/O
LATE
RAMNARAYAN GOYAL, AGED ABOUT 80 YEARS,
6B.
ASHOK GOYAL S/O PRAHALAD DASJI GOYAL,
AGED ABOUT 43 YEARS,
6C.
SMT. JYOTI GOYAL W/O ASHOK GOYAL ALL
RESPONDENTS 6(A) TO 6 (C) ARE R/O 18, OMKAR
BHAWAN, SHYAMALA HILLS, BHOPAL (MADHYA
PRADESH)
1
Signed by: RASHMI
RONALD VICTOR
Signing time: 9/1/2023
5:25:45 PM
Signature Not Verified
7.
STATE
OF
MADHYA
PRADESH
THROUGH
COLLECTOR OFFICE
OF
COLLECTOR
OLD
SECRETARIAT BUILDING BAIRAGARH ROAD,
BHOPAL (MADHYA PRADESH)
8A.
SMT. SHARAFAT BI W/O LATE MAZID BEG, AGED
ABOUT 85 YEARS, R/O HOUSE NO.53 VILLAGE
AHMEDPUR KALA NAGAR NIGAM WARD NO. 53
HOSHANGABAD ROAD TEHSIL HUZUR BHOPAL
(MADHYA PRADESH)
8B.
SMT. HAMEEDA BI W/O SHAHZAD KHAN D/O
LATE MAJID BEG, AGED ABOUT 65 YEARS, HOUSE
NO. 53 VILLAGE AHMEDPUR KALA NAGAR
NIGAM WARD NO. 53 HOSHANGABAD ROAD
TEHSIL HUZUR BHOPAL (MADHYA PRADESH)
8C.
MOHD.RASHID BEG S/O LATE MAJID BEG, AGED
ABOUT 60 YEARS, H.NO. 9 NIRUPAM ESTATE
OPPOSITE THANA BAG SEWANIA HOSHANGABAD
ROAD (MADHYA PRADESH)
8D.
SMT.FAMIDA BI W/O MUNNAWAR D/O MAJID
BEG, AGED ABOUT 45 YEARS, HOUSE NO. 53
VILLAGE AHMEDPUR KALA NAGAR NIGAM
WARD NO. 53 HOSHANGABAD ROAD TEHSIL
HUZUR BHOPAL (MADHYA PRADESH)
8E.
SALEEM BEG S/O LATE MAJID BEG, AGED ABOUT
44 YEARS, HOUSE NO. 53 VILLAGE AHMEDPUR
KALA
NAGAR
NIGAM
WARD
NO.
53
HOSHANGABAD ROAD TEHSIL HUZUR BHOPAL
(MADHYA PRADESH)
8F.
SMT. FARIDA BI W/O TAHIR ALI D/O LATE MAJID
BEG, AGED ABOUT 38 YEARS, NEAR ROYAL
MARKET (MADHYA PRADESH)
8G.
KU.SANJIDA BI D/O LATE MAJID BEG, AGED
ABOUT
36
YEARS, HOUSE NO. 53 VILLAGE
AHMEDPUR KALA NAGAR NIGAM WARD NO. 53
HOSHANGABAD ROAD TEHSIL HUZUR BHOPAL
(MADHYA PRADESH)
8H.
MOHD.ARSHAD BEG S/O LATE MAJID BEG, AGED
ABOUT
32
YEARS, HOUSE NO. 10 NIRUPAM
ESTATE
OPPOSITE
THANA
BAG
SEWANIA
HOSHANGABAD ROAD TEHSIL HUZUR (MADHYA
2
Signed by: RASHMI
RONALD VICTOR
Signing time: 9/1/2023
5:25:45 PM
Signature Not Verified
PRADESH)
.....RESPONDENTS
(BY SHRI RAVISH AGRAWAL, LEARNED SENIOR ADVOCATE ALONG
WITH MS. SANJANA SAHNI, ADVOCATE)
(BY SHRI VIJAY PANDEY, PANEL LAWYER FOR RESPONDENT/STATE)
CIVIL REVISION No. 401 of 2021
BETWEEN:-
MAZID BEG (DEAD) THR. ARKEY INVESTMENT PVT.
LTD THR. ITS DIRECTOR MANOJ GARG, S/O SHRI J.P.
GARG, R/O 16, AMAR STAMBH, PRESS COMPLEX M.P.
NAGAR, ZONE-1, BHOPAL (MADHYA PRADESH)
.....APPLICANT
(BY SHRI RAJESH PANCHOLI, ADVOCATE)
AND
1.
SHRI ARVIND AGRAWAL S/O SHRI RAMESHWAR
AGRAWAL, AGED ABOUT 45 YEARS,
2.
DR. SUBHASH CHANDRA AGRAWAL S/O SHRI
RAMESHWAR PRASAD AGRAWAL, AGED ABOUT
42 YEARS,
BOTH ARE R/O 27-A SHANKAR NAGAR, RAIPUR
(CHHATTISGARH)
3A.
PRAHALAD
DASJI
GOYAL
S/O
LATE
RAMNARAYAN GOYAL, AGED ABOUT 80 YEARS,
3B.
ASHOK GOYAL S/O PRAHALAD DASJI GOYAL,
AGED ABOUT 43 YEARS,
3C.
SMT.
JYOTI
GOYAL
W/O
ASHOK
GOYAL
RESPONDENTS 3(A) TO 3(C) ARE R/O 18 OMKAR
BHAWAN SHYAMALA HILLS (MADHYA PRADESH)
4.
MOHD. NASEEM BEG S/O MAZID BEG, AGED
ABOUT
43
YEARS, NEAR MASZID VILLAGE
AHMEDPUR
KALA
TEH.
HUZUR
(MADHYA
PRADESH)
5.
STATE OF M.P. THR.
COLLECTOR OFFICE OF
COLLECTOR
OLD
SECRETARIAT
BUILDING
BAIRAGARH ROAD (MADHYA PRADESH)
3
Signed by: RASHMI
RONALD VICTOR
Signing time: 9/1/2023
5:25:45 PM
Signature Not Verified
6A.
SMT. SHARAFAT BI W/O LATE MAZID BEG HOUSE
NO. 53 VILLAGE AHMEDPUR KALA NAGAR
NIGAM WARD NO. 53 HOSHANGABAD ROAD
TEHSIL HUZUR BHOPAL (MADHYA PRADESH)
6B.
SMT. HAMEEDA BI W/O SHAHZAD KHAN, AGED
ABOUT
65
YEARS, HOUSE NO. 53 VILLAGE
AHMEDPUR KALA NAGAR NIGAM WARD NO. 53
HOSHANGABAD ROAD TEHSIL HUZUR BHOPAL
(MADHYA PRADESH)
6C.
MOHD. RASHID BEG S/O LATE MAJID BEG, AGED
ABOUT 60 YEARS, H.NO. 9 NIRUPAM ESTATE
OPPOSITE THANA BAG SEWANIA HOSHANGABAD
ROAD TEH. HUZUR (MADHYA PRADESH)
6D.
SMT. FAMIDA BI W/O MUNNAWAR, AGED ABOUT
45 YEARS, HOUSE NO. 53 VILLAGE AHMEDPUR
KALA
NAGAR
NIGAM
WARD
NO.
53
HOSHANGABAD ROAD TEHSIL HUZUR BHOPAL
(MADHYA PRADESH)
6E.
SALEEM BEG S/O LATE MAJID BEG, AGED ABOUT
44 YEARS, HOUSE NO. 53 VILLAGE AHMEDPUR
KALA
NAGAR
NIGAM
WARD
NO.
53
HOSHANGABAD ROAD TEHSIL HUZUR BHOPAL
(MADHYA PRADESH)
6F.
SMT. FARIDA BI W/O TAHIR ALI, AGED ABOUT 38
YE A R S , NEAR
ROYAL
MARKET
(MADHYA
PRADESH)
6G.
KU. SANJIDA BI D/O LATE MAJID BEG HOUSE NO.
53 VILLAGE AHMEDPUR KALA NAGAR NIGAM
WARD NO. 53 HOSHANGABAD ROAD TEHSIL
HUZUR BHOPAL (MADHYA PRADESH)
6H.
MOHD. ARSHAD BEG S/O LATE MAJID BEG, AGED
ABOUT
32
YEARS, HOUSE NO. 10 NIRUPAM
ESTATE
OPPOSITE
THANA
BAG
SEWANIA
HOSHANGABAD ROAD TEHSIL HUZUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI RAVISH AGRAWAL, LEARNED SENIOR ADVOCATE ALONG
WITH MS. SANJANA SAHNI, ADVOCATE FOR RESPONDENTS 1-4)
(BY SHRI VIJAY PANDEY, PANEL LAWYER FOR RESPONDENT 5/STATE)
(BY SHRI MOHD. AADIL USMANI ALONG WITH SHRI SHIVANSH
CHOUKEY, ADVOCATE FOR LRS. OF RESPONDENT 6)
Both the revisions coming on for hearing this day, the court passed the
4
Signed by: RASHMI
RONALD VICTOR
Signing time: 9/1/2023
5:25:45 PM
Signature Not Verified
following:
There is common question involved in these two civil revisions,
therefore, both are being decided by this common order.
2 . These civil revisions have been preferred by one of the
plaintiffs/applicant challenging the identical orders dated 30/06/2021
passed by 5th Additional District Judge, Bhopal in RCS No.527-A/2008
and 460-A/2008, whereby plaintiffs’ applications under Order 7 Rule 11
CPC have been dismissed.
3 . Learned counsel for the applicant/plaintiff submits that originally the
suit was filed by plaintiff- Mazid Beg, in which written statement(s)
was/were filed by the defendants and one of the defendants namely Omwati
Goyal filed counter-claim also. During pendency of suit, plaintiff- Mazid
Beg died, therefore, his legal representatives were substituted and under
order of High Court, applicant- Arkey Investment Pvt. Ltd. was also
impleaded as one of the plaintiffs in the plaint. Prior to substitution of
Arkey Investment Pvt. Ltd., the defendant(s) filed his/their written
statement(s) and defendant Omwati Goyal filed separate written statement
as well as counter-claim and nobody else has filed the counter-claim.
4. Learned counsel for the applicant/plaintiff submits that learned trial
Court is trying the suit and counter-claim jointly. It is also one of the fact on
record that prior to death of original plaintiff- Mazid Beg, he had filed
written statement to the counter-claim. By placing reliance on the decision
of Supreme Court in the case of Jag Mohan Chawla and another Vs. Dera
Radha Swami Satsang and others AIR 1996 SC 2222 (pr.5), learned
counsel for the plaintiff/applicant submits that because same procedure is
applicable to the counter-claim, therefore, the defendant- Omwati Goyal
also should have filed application for substitution of original plaintiff’s
legal representatives as well as for impleadment of Arkey Investment Pvt.
Ltd. in the counter-claim and in absence thereof the prayer made on behalf
of the applicant/plaintiff for dismissal of the counter claim as abated, has
wrongly been turned down by learned Court below in both the cases and
submits that because the defendant did not take steps to substitute the legal
representatives of plaintiff- Mazid Beg so also to implead the Arkey
Investment Pvt. Ltd. in the counter-claim, therefore, the same has abated
and deserves to be dismissed.
5. Learned Senior Counsel with Ms. Sanjana Sahni, Advocate by placing
reliance on the decision of Supreme Court in the case of Organic
Insulations Vs. Indian Rayon Corporation Ltd. (2003) 9 SCC 187, submits
that after substitution of legal representatives in the plaint, the substitution
in the counter-claim is not required to be done and the counter-claim would
not abate as no prejudice would be caused to the LRs. of the deceased who
5
would have full opportunity to present their defence because a suit and
counter-claim are to be tried by the same Court in the same proceedings.
With these contentions, he prays for dismissal of the civil revisions.
6. Heard learned counsel for the parties and perused the record.
7. Undisputedly, after death of original plaintiff- Mazid Beg, his legal
representatives were substituted in the plaint and under order of this Court,
the name of applicant - Arkey Investment Pvt. Ltd. was also added as one
of the plaintiffs. By way of application under Order 7 Rule 11 CPC, the
plaintiffs have raised objection to the effect that because of non-substitution
of legal representatives of plaintiff-Mazid Beg and non-impleadment of
Arkey Investment Pvt. Ltd. in the counter-claim, the same has abated.
8. In the case of Organic Insulations Vs. Indian Rayon Corporation Ltd.
(2003) 9 SCC 187 (supra), Hon'ble Supreme Court has held as under:
“3. Coming to the provisions of Order 8 Rule 6-A, although
sub-rule (4) says that the counter-claim will be treated as a
plaint, under sub-rule (2), such counter-claim has the same
effect as a cross-suit so as to enable the court to pronounce a
final judgment in the same suit, both on the original suit
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