IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL th ON THE 14 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 Signature Not Verified Signed by: KUMARI PALLAVI 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 Signature Not Verified Signed by: KUMARI PALLAVI 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 long as one of the heirs has been brought on record who substantially represented estate of deceased plaintiff, the application could not be dismissed