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2010 DIGILAW 576 (MP)

Shambhu Singh v. Totaram through Somta Devi

2010-05-19

N.K.MODY

body2010
ORDER 1. Being aggrieved by order dated 17.12.2004 passed by IInd Additional District Judge, Morena in Civil Appeal No.10-A/2000 whereby the appeal filed by the appellant has been dismissed as the legal representative of the deceased Gyaniya was not brought on record in time, against which the present appeal has been filed. 2. Short facts of the case are that the respondent No.1 to 11 filed a suit against the appellant which was numbered as Civil Suit No.101-A/85 and was decreed vide judgment dated 31.1.2000 against which the appeal was filed by the appellant which was numbered as Civil Appeal No.10-A/2000. During the pendency of appeal Gyaniya died on 6.8.2002 and application was filed for substitution of legal representatives on 12.7.2004, the application was dismissed against which the present appeal has been filed. 3. Learned counsel for the appellant argued at length and submitted that the impugned order passed by the learned appellate Court is illegal, incorrect and deserves to be set-aside. It is submitted that intimation was given in Court about the death of Gyaniya on 6.8.2002, but it was never communicated to the appellant till 11.7.2004. It is submitted that on 11.7.2004 when the appellant contracted to the advocate for final arguments as the case was listed on 12.7.2004 at that time Shri Jagdish Chandra Agrawal counsel for the appellant given information about the death of Gyaniya. It is submitted that immediately on the next date appropriate application was filed. It is submitted that without holding any inquiry the application was dismissed. It is submitted that appeal be allowed and the impugned order dated 17.12.2004 be set-aside. 4. Shri Brajesh Sharma, learned counsel for the respondent No. 1 to 11 submits that no illegality has been committed by the learned Court below in passing the impugned order as Gyaniya died on 6.8.2002 while application was filed on 12.7.2004. It is submitted that appeal be dismissed. 5. After taking into consideration all the facts and circumstances of the case and keeping in view that facts that no enquiry was held by the learned appellate Court, this Court is of the view that the appeal deserves to be allowed. The appeal is allowed and the impugned order dated 17.12.2004 is set-aside with a direction to the learned appellate Court to hold summary enquiry about the facts of abatement and pass a reasoned order. 6. The appeal is allowed and the impugned order dated 17.12.2004 is set-aside with a direction to the learned appellate Court to hold summary enquiry about the facts of abatement and pass a reasoned order. 6. With the aforesaid direction appeal is allowed and parties are directed to present before the learned appellate Court on 28th July, 2010.