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NEUTRAL CITATION NO. 2026:MPHC-JBP:7888

1 MCC-2762-2025

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE DEEPAK KHOT

th

ON THE 28 OF JANUARY, 2026

MISC. CIVIL CASE No. 2762 of 2025

SMT. GEETA AND OTHERS

Versus

SMT. KALI BAI AND OTHERS

Appearance:

Shri Arvind Kumar Shrivastava - Advocate for the applicant.

Shri S.K. Dubey - Panel Lawyer for the respondent/State.

Shri Vikram Johri - Advocate for respondent No.1, 2 and 4.

ORDER

The present application has been filed and styled as application for

recalling of order dated 03.05.2024 passed in First Appeal No.364/2014.

Along with the application for recalling, an application under Order 22 Rule

9 of CPC for setting aside abatement and condonation of delay has been

filed as I.A.No.16526/2025 and I.A.No.16527/2025.

2. Preliminary objection has been taken by counsel for the respondents

that firstly restoration application was filed which was dismissed as

withdrawn to file properly constituted application and it was also not

maintainable. Now the present application has been filed which is also

not maintainable as it is not filed under the provisions of Order 22 Rule 9 of

CPC for setting aside the abatement.

3. From the perusal of the application, it is found that in the prayer,

Signature Not Verified

Signed by: ANAND KRISHNA

SEN

Signing time: 28-01-2026

19:09:50

NEUTRAL CITATION NO. 2026:MPHC-JBP:7888

2 MCC-2762-2025

recalling of the order by which the abatement has been declared, has been

sought and an application under Order 22 Rule 9 of CPC for setting aside

abatement has been filed separately.

4. It is submitted by counsel for the applicant that the applicant had

filed the application under Order 22 Rule 9 of CPC but that was not

registered and accepted by filing section of Registry, however, in support of

the said contention, no material has been placed before this Court.

Considering the plight of the client who has been waiting for his appeal to be

decided on merits and the principle that for the mistake of the counsel the

litigant should not be punished, in the interest of justice, the application is

being treated as application under Order 22 Rule 9 of CPC, as it is also filed

as I.A.No.16526/2025 alongwith with the application.

5. It is submitted by counsel for the applicant that though the counsel

for the respondent has informed about the death of the sole respondent, the

counsel then appearing before the first appellate Court did not inform the

LRs of sole respondent. When the appeal was dismissed as abated, the LRs

have contacted the counsel for setting aside the abatement and thus, the delay

caused in filing the application is based on bonafide and deserves to be

condoned.

6. Considering the fact that the sole respondent has died which caused

abatement of the first appeal due to lack of communication between the

counsel and the LRs of the respondent, coupled with the fact that the

application for restoration has been filed thereafter, but the same has been

dismissed as withdrawn as not maintainable and thereafter, the present

Signature Not Verified

Signed by: ANAND KRISHNA

SEN

Signing time: 28-01-2026

19:09:50

NEUTRAL CITATION NO. 2026:MPHC-JBP:7888

3 MCC-2762-2025

application has been filed alongwith an application under Order 22 Rule 9 of

CPC for setting aside the abatement.

7. Hon'ble Apex Court in the case of Om Prakash Gupta vs. Satish

Chandra 2025 SCC Online SC 291 has held :

"23. We find it difficult to agree with such reasoning. When an application

praying for substitution had been made, then, even assuming that it does not have an

explicit prayer for setting aside the abatement, such prayer could be read as inherent in

the prayer for substitution in the interest of justice. We draw inspiration for such a

conclusion, having read the decision in Mithailal Dalsangar Singh v. Annabai Devram

Kini35. This Court reiterated the need for a justice-oriented approach in such matters.

Inter alia, it was held that prayer to bring on record heir(s)/legal representative(s) can

also be construed as