IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

ON THE 14^th OF JULY, 2023

FIRST APPEAL No. 1237 of 2023

BETWEEN:-

RAMGOPAL KACHHI S/O LATE BABADEEN KACHHI,

AGED

ABOUT

70

YEARS, OCCUPATION:

AGRICULTURIST R/O VILLAGE KURADIYA GAURNADI

JAMTARA MODH JABALPUR DISTRICT JABALPUR

(MADHYA PRADESH)

.....APPELLANT

(BY MS. SHRADDHA VERMA, ADVOCATE)

AND

1.

SMT RADHA BAI @ CHHOTI BAI KANOJIYA W/O

RAMDEEN KANOJIYA, AGED ABOUT 64 YEARS,

R/O 4433 SANJAY NAGAR DURGA CHOWK POLICE

STATION

ADHARTAL

JABALPUR

(MADHYA

PRADESH)

2.

STATE

OF

MADHYA

PRADESH

THROUGH

DISTRICT

PRESIDENT

JABALPUR DISTRICT

JABALPUR (MADHYA PRADESH)

3.

RAMSIYA

@

MAKKU

S/O

BABADEEN

KUSHAWAHA,

AGED

ABOUT

65

YEARS, R/O

VILLAGE KURADIYA, JAMTARA MODH, NEAR

CHURCH, P.S. BARELA, JABALPUR DISTRICT

JABALPUR (MADHYA PRADESH)

4.

SHIV NARAYAN S/O BABADEEN KUSHAWAHA,

AGED ABOUT 59 YEARS, R/O VILLAGE KURADIYA,

JAMTARA MODH, NEAR CHURCH, P.S. BARELA,

JABALPUR

DISTRICT

JABALPUR

(MADHYA

PRADESH)

.....RESPONDENTS

(BY MS. SHAKTI TRIPATHI, PANEL LAWYER FOR RESPONDENT-STATE)

This appeal coming on for admission this day, the court passed the

1

Signed by: KUMARI PALLAVI

SINHA

Signing time: 7/17/2023

5:50:07 PM

Signature Not Verified

following:

ORDER

This first appeal has been preferred by the appellant/plaintiff challenging

the final order dtd. 07.02.2023 passed by 15th District Judge, Jabalpur in Civil

Suit No. 4-A/14 whereby for want of application under Order 22 Rule 4 CPC

for substitution of legal heirs in respect of death of defendant 2-Ramdeen, the

suit has been dismissed as abated against all the defendants.

2. Learned counsel for the appellant/plaintiff submits that in the civil suit

contesting party was Smt. Radha Bai-defendant 1 and even after death of

defendant 2-Ramdeen Kanojiya, who was husband of defendant 1, no

abatement took place. Learned counsel further submits that in the aforesaid

circumstances, the plaintiff wanted to delete the name of defendant 2, but the

learned Court did not accept the application for deleting the name and

resultanlty dismissed the suit as having abated, whereas in presence of

defendant 1, who is wife and first class legal heir of the deceased defendant 2,

the suit had not abated. In this regard, learned counsel placed reliance on the

decision of Supreme Court in the case of Smt. Gema Coutinho Rodrigues, v.

Bricio Francisco Pereira and others AIR 1994 SC 1199, relevant paragraphs 5

& 6 are quoted as under:-

"5. It appears that the son namely Mr Cancio Coutinho who is

stated to be the brother of the appellant died before the filing of

the suit on October 19, 1972. After the filing of the suit the

appellant's father on whose behalf a suit had been filed died on

July 14, 1974 but no application was filed for bringing on record

the legal heirs of the father since the mother (wife of the deceased

father) was also the legal heir, already on the record. It appears

that the mother on whose behalf the suit had also been filed and

continued died on January 18, 1978 and the appellant who is the

daughter filed an application on April 11, 1978 under Order 1

Rule 10(1) read with Order 22 of Code of Civil Procedure for

2

Signed by: KUMARI PALLAVI

SINHA

Signing time: 7/17/2023

5:50:07 PM

Signature Not Verified

bringing on record the appellant herself as legal heir of the

mother. This application was filed on April 11, 1978 but the trial

court by its order dated March 19, 1979 dismissed the application

in the view that once one of the plaintiffs died all his successors

ought to be made parties to proceed with the suit and the

applicant is not entitled to proceed with the suit alone in her own

name. The High Court agreed with the trial court and dismissed

the revision petition filed by the appellant by the impugned order

dated January 11, 1983.

6. It appears that the gift deeds were made by deceased brother's

brother-in-law in pursuance of power of attorney in his favour. So

lon