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2017 DIGILAW 1149 (MP)

Gaya Prasad v. Laxmi Prasad

2017-11-10

ANJULI PALO

body2017
ORDER 1. This application seeking restoration of Second Appeal No.834/2001 has been filed by the legal representatives of original appellant-Gaya Prasad who died during pendency of the aforesaid second appeal. 2. This Court has dismissed the Second Appeal No.834/2001 on 22.3.2017 considering the fact that on 18.11.2016, 3.1.2017, 1.2.2017 and 17.2.2017 none was appeared on behalf of the appellant and also no steps have been taken by the appellant to bring his legal representatives on record. 3. The present application has been filed on the ground that appellant No.1-late Gaya Prasad was the main member of the family, who was dealing with the case, but after his death other female members could not contact their lawyer. Due to slip of sight the counsel for the appellants could not found his name in the list and reluctantly the second appeal was dismissed for want of prosecution on 22.3.2017. Hence they prayed to restore the aforesaid second appeal in its original number. 4. Learned counsel for the respondents has vehemently opposed the contentions of the applicants on the ground that the original appellant No.1 Gaya Prasad died during the pendency of the appeal, but his legal representatives were not taken on record. The present application was filed through his wife and other family members. They did not disclose as to when Gaya Prasad died. The appeal has already been abated. This fact has been suppressed by by the appellants. It is also submitted by him that respondent-Laxmi Prasad also died and in spite knowing this fact from the order dated 22.3.2017 without bringing the LRs of said Laxmiprasad this application has been filed. He prayed that this application deserves to be dismissed with costs. 5. Heard and perused the record. 6. Learned counsel for the applicants has placed reliance on the decision of a Coordinate Bench of this Court dated 1.3.2016 in the case of Deceased Mariambai Through LRs. Sakirkha v. Deceased Chhuttan @ Chhotekhan Through LRs Jahangir (Miscellaneous Civil Case No.899/2015), reported in 2016(I) MPWN 164 , wherein the Bench has considered that :- “.............. when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the Court only when it is ripe for hearing or when some application seeking an interim direction is filed. when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the Court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some Courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the Court issues a notice to him informing the death of the respondent. 6. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the Court about the death and whether the Court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the Court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. When the death is reported and recorded in the order sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the Court notifies him about the death of the respondent that may be indication of negligence or want of diligence.” 7. Learned counsel for the applicants submits that the the facts of the present case is almost similar to the above case. 8. The Division Bench of this Court in the case of Smt. Sayeeda Begam and another v. Ashraf Hussain [ 1979 JLJ 725 = AIR 1980 M.P. 12 )], has held as under :- “Civil P.C. (5 of 1908), S.141, O.9 R.13, O.22 – Application for restoration of suit dismissed in default – Death of applicant – substitution of his LRs - O.22 not applicable – Also limitation under Article137 and not Article 121 applies.” 9. The Hon'ble Supreme Court in the case of Banwari Lal (dead) By Legal LRs and another v. Balbir Singh [ (2016)1 SCC 607 ], has held as under:- “Civil Procedure Code, 1908 – Order 22 rules, 3, 4, 9 and 11 – Doctrine of abatement – applicability of, to appeals – application to bring legal representatives of the deceased appellant on record, held, revives once appeal is restored- Doctrine of abatement is applicable equally to a suit as well as to an appeal” 10. The present application for restoration is filed on 29.6.2017 and the second appeal was dismissed on 23.3.2017, thus it is clear that no inordinate delay has been caused in filing the present application. The condition was beyond the control of the legal representatives of Gaya Prasad because they all are ladies. Usually in the presence of male members, ladies do not contact with the advocate. Hence, this Court does not find any mala fide intention of delay in filing the present application. 11. The objection raised by the learned counsel for the respondents can be considered at the appropriate stage while considering the question of abatement of appeal. 12. Usually in the presence of male members, ladies do not contact with the advocate. Hence, this Court does not find any mala fide intention of delay in filing the present application. 11. The objection raised by the learned counsel for the respondents can be considered at the appropriate stage while considering the question of abatement of appeal. 12. In view of the above discussions and considering the above judgments, the present application deserves to be allowed subject to depositing a cost of Rs.5,000/- to the respondents. Second Appeal No.834/2001 be restored to its original number after receiving the cost amount by the applicants. The applicants will file necessary application for bringing the LRs of deceased along with necessary application, if any within 2 weeks. 13. With the aforesaid, this miscellaneous civil case stands disposed of.