Back
2023 Supreme(Online)(MP) 5530
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
CIVIL REVISION No. 591 of 2023
BETWEEN:-
1.
LAXMINARAYAN S/O LATE SHRI BHERAJI,
AGED ABOUT 80 YEARS, OCCUPATION:
AGRICULTURIST R/O GRAM SIROLYA TEHSIL
AND DISTRICT DEWAS (MADHYA PRADESH)
2.
RAMCHANDRA S/O LATE SHRI BHERAJI
KHATI, AGED ABOUT 67 YEARS, OCCUPATION:
AGRICULTIRIST R/O GRAM SIROLYA, TEH.
AND DIST. DEWAS (MADHYA PRADESH)
3.
VISHNU S/O LATE SHRI BHERAJI KHATRI,
AGED ABOUT 61 YEARS, OCCUPATION:
AGRICULTURIST GRAM SIROLYA, TEH. AND
DIST. DEWAS (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI ROHIT KUMAR MANGAL - ADVOCATE)
AND
1.
JANKIBAI W/O LATE SHRI RAGHUNATH DIED
THROUGH LRS SMT. SUMAN @ SHAKUNTALA
W/O LATE SHRI BHAGWANIT CHANDWASKAR
DIED THROUGH LRS. PRABHAKAR S/O LATE
SHRI BHAGWANI CHANDWASKAR D 1/94
GAJLAXMI
COOPERATIVE
SOCIETY
OPPOSTIE GANDHI TRAINING COLLEGE PUNE
(MAHARASHTRA)
Signed by: NEERAJ
SARVATE
Signing time: 09-10-2023
13:49:35
Signature Not Verified
2
2.
JANKIBAI W/O LATE SHRI RAGHUNATH DIED
THROUGH LRS SMT. SUMAN @ SHAKUNTALA
W/O LATE SHRI BHAGWANIT CHANDWASKAR
DIED THROUGH LRS. LATIKA D/O LATE SHRI
BHAGWANT CHANDWASKAR 902 ANAND B
APARTMENT SUN CITY RASTA NIBANJ NAGAR,
S. NO. 12/5/2/4 PUNE (MAHARASHTRA)
3.
JANKIBAI W/O LATE SHRI RAGHUNATH DIED
THROUGH LRS SMT. SUMAN @ SHAKUNTALA
W/O LATE SHRI BHAGWANIT CHANDWASKAR
DIED THROUGH LRS. JAYANT S/O LATE SHRI
BHAGWANT CHANDWASKAR DIED THROUGH
LRS SMT. RASHMI W/O LATE SHRI JAYANT
CHANDWASKAR 13, NAVKAR APARTMENT,
HARIHAR SOCIETY, MANI NAGAR, TEKRA
AHMEDABAD (GUJARAT)
4.
JANKIBAI W/O LATE SHRI RAGHUNATH DIED
THROUGH LRS SMT. SUMAN @ SHAKUNTALA
W/O LATE SHRI BHAGWANIT CHANDWASKAR
DIED THROUGH LRS. JAYANT S/O LATE SHRI
BHAGWANT CHANDWASKAR DIED THROUGH
LRS SMT. ANANT S/O LATE SHRI JAYANT
CHANDWASKAR 13, NAVKAR APARTMENT,
HARIHAR SOCIETY, MANI NAGAR, TEKRA
AHMEDABAD (GUJARAT)
5.
JANKIBAI W/O LATE SHRI RAGHUNATH DIED
THROUGH LRS KRISHNARAO S/O LATE SHRI
REGHUNATH RAO DECEASED THROUGH LRS
SEPERATELY IMPLEADED 1-F-16, MALVIYA
NAGAR, DIST. JAIPUR (RAJASTHAN)
6.
JANKIBAI W/O LATE SHRI RAGHUNATH DIED
THROUGH LRS VINAYAK RAO S/O LATE SHRI
RAGHUNATH RAO DECEASED THROUGH LRS
SEPERETALY IMPLEADED 1-F-16 MALVIYA
NAGAR DIST. JAIPUR (RAJASTHAN)
7.
JANKIBAI W/O LATE SHRI RAGHUNATH DIED
THROUGH LRS SMT. AASHA @ MANISHA W/O
SHRI SHASHIKANT KOTWAL 1-F-16, MALVIYA
NAGAR, DIST. JAIPUR (RAJASTHAN)
Signed by: NEERAJ
SARVATE
Signing time: 09-10-2023
13:49:35
Signature Not Verified
3
8.
KRISHNARAO S/O LATE SHRI RAGHUNATH
RAO DECEASED THROUGH LRS ABHAYA D/O
LATE SHRI KRISHNA RAO HOUSE NO. 2002,
RATAN NAGAR, NEAR SENT JAVIER SCHOOL,
MADAN MAHAL JABALPUR (MADHYA
PRADESH)
9.
KRISHNARAO S/O LATE SHRI RAGHUNATH
RAO DECEASED THROUGH LRS RAJEEV S/O
LATE SHRI KRISHNA RAO DECEASED
THROUGH LRS JAHNVI D/O RAJEEV RAO 31
C/A, TULSI NAGAR, INDORE DIST. INDORE
(MADHYA PRADESH)
10.
KRISHNARAO S/O LATE SHRI RAGHUNATH
RAO DECEASED THROUGH LRS ANAJALI D/O
LATE SHRI KRISHNA RAO DECEASED
THROUGH LRS SARANG D/O RAJESH
KOTWAL TULSI NAGAR, INDORE DIST.
INDORE (MADHYA PRADESH)
11.
VINAYAK RAO S/O LATE SHRI RAGHUNATH
RAO DECEASED THROUGH LRS. SADHNA D/O
LATE SHRI RAGHUNATH RAO LAXMIBAI
MARG, NEAR NAHAR ASHIRWAD BHAWAN
DEWAS (MADHYA PRADESH)
12.
VINAYAK RAO S/O LATE SHRI RAGHUNATH
RAO DECEASED THROUGH LRS. VARSHA D/O
LATE SHRI RAGHUNATH RAO 30, DILWAS B.A.
R.C. ANUSHAKTI NAGAR INFRONT OF AERB
BUILDING MUMBAI (MAHARASHTRA)
13.
VINAYAK RAO S/O LATE SHRI RAGHUNATH
RAO DECEASED THROUGH LRS. MADHURI
D/O LATE SHRI RAGHUNATH RAO 10, LIG, B
JAWAHAR MARG, RATLAM (MADHYA
PRADESH)
14.
VINAYAK RAO S/O LATE SHRI RAGHUNATH
RAO DECEASED THROUGH LRS. ANAND D/O
LATE SHRI RAGHUNATH RAO PLOT NO. 69/70,
SUJATA NIWAS, FLAT NO. 1 NEAR PET PUJA
RESTAURANT,
LOHAGUN
PUNE
(MAHARASHTRA)
Signed by: NEERAJ
SARVATE
Signing time: 09-10-2023
13:49:35
Signature Not Verified
4
15. STATE OF M.P. THROUGH COLLECTOR
DEWAS, DIST. DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.15/STATE BY SHRI RAJWARDHAN GAWDE, GOVT.
ADVOCATE AND CAVEATOR BY SHRIADITYA GOYAL - ADVOCATE)
…..............................................................................................................
Reserved on : 23.08.2023
Pronounced on : 09.10.2023
….............................................................................................................
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the court passed the following:
Rohit Kumar Mangal,
1.
This Revision under Section 115 of the CPC has been preferred
by the plaintiffs being aggrieved by the order dated 06.07.2023 passed
in RCS No.49-A/2019 by the Civil Judge, Junior Division, Dewas
whereby their application under Order 23 Rule 1 of the CPC for
withdrawal of the suit with liberty to institute a fresh suit has been
rejected.
2.
The facts in brief are that on 20.03.2019 the plaintiffs instituted
an action for declaration of their title to the suit land and for permanent
injunction. Summons of the suit were issued to the defendants and
defendants 1 to 3 were purportedly served by way of publication in a
daily newspaper. On 19.09.2022, at the time of recording of plaintiff’s
ex parte evidence, Smt. Abhaya Bai @ Kalka, legal representative of
deceased defendant No.2 Krishnarao, filed an application for dismissal
5
of the suit on the ground that the same has been instituted against dead
persons. By order dated 15.12.2022 the application was rejected by the
trial Court holding that Smt. Abhaya Bai is not a party to the suit hence
has no right to file the application.
3.
On 08.05.2023, the plaintiffs filed an application under Order 23
Rule 1(3) of the CPC for withdrawal of the suit with liberty to institute
a fresh suit in respect of the subject matter of the suit submitting that
since the same has been instituted against dead persons, it is a nullity
and the defect goes to the root of the matter hence they deserve
permission to withdraw the same. By the impugned order the
application has been rejected by the trial Court observing that
defendants 1 to 3 had expired prior to filing of the suit itself hence their
legal representatives cannot be brought on record. Since the suit was
filed against dead persons, the same does not fall within the category of
a formal defect. In consequence the application filed by the plaintiffs
has been rejected.
4.
Learned counsel for the plaintiffs has submitted that the suit was
instituted by plaintiffs against dead persons. They had no knowledge at
the time of institution of the suit that they have already expired. The
said fact became known to them only upon an application having been
filed by one of the legal heirs of defendant No.2 for dismissal of the
suit. Since the suit was filed against dead persons, their legal
representatives also cannot be brought on record. The same is a formal
6
defect and does not strike at the root of the suit hence provisions of
Order 23 Rule 1(3) of the CPC were very much applicable. In fact, the
suit was itself a nullity. Reliance was placed by him on the decision of
the Supreme Court in V. Rajendran and Another V/s. Annasamy
Pandian (dead) through Legal Representatives Karthyayani
Natchiar (2017) 5 SCC 63, of the Punjab and Haryana High Court in
Naseem Hushain and Another V/s. Smt. Mahender Kaur and
Another 2015 SCC OnLine P&H 8414, of the Bombay High Court in
Indana International Limited V/s. Santana Miguel Fernandis and
Another 2007 SCC OnLine Bom. 381 and of this Court in Thakur
Deen Singh (dead) through Legal Representatives Rampratap
Singh and Others V/s. Surendra Singh @ Radhika Singh 2017 (2)
MPLJ 580.
5.
Per contra, learned counsel for the caveator/respondent No.8 has
submitted that institution of the suit against dead persons is not a formal
defect and goes to the very root of the matter. It cannot be said that the
suit was a nullity. The trial Court has hence not committed any error in
rejecting the application filed by the plaintiffs. Reliance was placed by
him on the decisions of this Court in Raghuraj and Others V/s.
Ramprakash and Others 2017 (2) MPLJ 158 and Vinod Kumar
Gupta V/s. Ramadevi Shivhare and Another 2008 (2) of MPLJ 151
and of the Himachal Pradesh High Court in Promila Bakshi and
Others V/s. Ashok Bhatia and Others AIR 2007 HP 14.
7
6.
I have considered the submissions of the learned counsel for the
parties and have perused the record.
7.
The question of consideration is as to whether institution of the
suit by plaintiffs against d
