Nand Kishore vs Gulab
- Court
- Madhya Pradesh High Court
- Decided on
- 17-03-2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:22395
1 MP-6526-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
th
ON THE 17 OF MARCH, 2026
MISC. PETITION No. 6526 of 2019
NAND KISHORE
Versus
GULAB AND OTHERS
Appearance:
Shri Devendra Kumar Tripathi - Advocate for the petitioner.
Shri Mukund Agrawal - Govt. Advocate for the respondents / State.
Shri Ashok Choudhary- Advocate for respondents No.1 to 3
ORDER
The present petition has been filed challenging the order dated 14.11.2019
passed by the appellate Court whereby the appellate Court has set aside the order
of the trial Court dated 29.06.2019 whereby the trial Court had allowed an
application under Order 9 Rule 13 CPC and set aside the ex-parte decree against
the present petitioners. Now the appellate Court has rejected the application under
Order 9 Rule 13 CPC and therefore, the ex-parte judgement and decree has been
brought back to life against the petitioner.
2. The necessary facts in brief for the purpose of disposal of present
petition are that initially a civil suit was filed by one Munnu against the present
petitioners and in the said suit there was an ex-parte judgment and decree dated
01.08.2016 against which application under Order 9 Rule 13 CPC was filed for
setting aside the ex-parte decree on 15.10.2016. In the said application notice was
issued to the plaintiff Munnu and in the service report which was recorded in the
order sheet dated 28.06.2017, the plaintiff Munnu was reported to have expired.
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 20-03-2026
18:15:35
NEUTRAL CITATION NO. 2026:MPHC-JBP:22395
2 MP-6526-2019
Thereafter, the present respondent No.4- Chandrabhan appeared on 20.07.2017
and stated that there is no other legal representative of deceased Munnu except
him and he is the nephew of deceased Munnu and is a class-II legal heir. The trial
Court took the said person Chandrabhan on record as legal representative of
deceased plaintiff Munnu.
3. Thereafter on 15.02.2018 the respondents No.1 to 3 filed an application
before the trial Court for impleading their names in the proceedings because they
are the sons and daughters of deceased Munnu on which the respondent No.4
Chandrabhan raised objection and ultimately on 25.08.2018, the trial Court
passed an order impleading the respondent No.1 and 3 being class-I legal
representatives of Munnu.
4. After their impleadment as legal representatives, the respondents No.1
to 3 filed an application under Order 22 Rule 3(2) CPC on the ground that since
no application for setting aside abatement has been filed till date, therefore the
MJC under Order 9 Rule 13 has abated and it be dismissed.
5. The trial Court considered the said application on the same date of
passing judgment in MJC proceedings under Order 9 Rule 13 CPC, i.e. on
29.06.2019 and held that there would be no question of abatement of Order 9 Rule
13 CPC proceedings because one person had himself appeared before the Court on
20.07.2017 for being impleaded as legal representative who was impleaded as
legal representative and thereafter, the respondents No.1 to 3 themselves
approached the Court along with an application to implead them being class-I
legal representatives which has been allowed and in such circumstances there
would be no abatement of the MJC proceedings.
6. The trial Court by the separate order of the same date allowed the
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 20-03-2026
18:15:35
NEUTRAL CITATION NO. 2026:MPHC-JBP:22395
3 MP-6526-2019
application under Order 9 Rule 13 CPC and restored the suit to its original file.
However, the respondents No. 1 to 3 filed appeal before the appellate Court and
the appellate Court by the impugned order dated 14.11.2019 has set aside the order
passed by the trial Court under Order 9 Rule 13 CPC holding that there has been
no ultimate adjudication that who is the actual legal representative of deceased
Munnu and the trial Court did not carry out necessary proceedings under Order 22
Rule 5 CPC to determine the actual legal representatives of deceased Munnu. It
was to be enquired whether Chandrabhan is the legal representative or the
respondents No.1 to 3 are the legal representatives and that enquiry has not been
done. The appellate Court, therefore held that since the application under Order 22
Rule 3 or 4 CPC was not filed within time and the application under Order 22
Rule 9 was not filed at all, therefore the suit had abated upon expiry of 90 days
from 28.06.2017 and application under Order 22 Rule 9 CPC ought to have been
filed, which was never filed. Therefore, holding that the proceedings under Order
9 Rule 13 CPC had abated, the appellate Court has set aside the order passed by
the trial Court.
7. This Court has heard learned counsel for the parties at length and
perused the documents placed on record.
8. The appellate Court has held that since the date of knowledge was
28.06.2017, therefore application under Order 22 Rule 3 CPC ought to have been
filed within 90 days from that date. Admittedly, one Chandrabhan had already
appeared within 30 days of 28.06.2017 stating that he is a Class-II legal
representative of deceased Munnu and the trial Court had allowed the said
application. Therefore, there was some impleadment within 90 days and there is
nothing on record to show that before the trial court any information had been
received that there are any other legal representatives of the deceased Mannu,
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 20-03-2026
18:15:35
NEUTRAL CITATION NO. 2026:MPHC-JBP:22395
4 MP-6526-2019
much less any class-I legal representative
9. It was only when the respondents No. 1 to 3 themselves appeared
before the trial Court that the petitioner could get the knowledge that there are
other legal representatives and class-I legal representatives of deceased Munnu.
However, there was no occasion to file application under Order 22 Rule 9 or
Order 22 Rule 3 because these legal representatives themselves had filed
application for impleadment.
10. In the recent judgment of the Hon'ble Supreme Court in Binod Pathak
Vs. Shankar Choudhary, 2025 SCC Online SC 1411, it has been held as under:-
"60. Rule 10A of Order XXII, as inserted by the Amendment
Act, 1976 imposes an obligation on the pleader appearing
for the party to intimate death of his client to the court. But
there is difference of opinion as to whether the duty imposed
on the pleader is confined to factum of death of a party or
also to furnish names and particulars of legal
representatives.
61. According to one view, there is no obligation on the
pleader appearing on behalf of the deceased party to furnish
or supply list of legal representatives of the deceased.
62. According to the other view, however, the pleader has
not only to inform the court as to death of the party but he
must also furnish particulars of legal representatives.
63. However, we are of the view that providing merely an
information with regard to the fact of death is not sufficient
compliance of the Rule 10A of the CPC. unless and until the
counsel furnishes the information with regard to the details
of the persons on whom and against whom the right to sue
survives and the information under Rule 10A of the CPC.
and the object behind it would remain incomplete as the
parties would still be labouring to inquire who are the legal
representatives and find out as to upon whom and against
whom the right to sue survives."
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 20-03-2026
18:15:35
NEUTRAL CITATION NO. 2026:MPHC-JBP:22395
5 MP-6526-2019
11. In view of the aforesaid judgment of the Hon'ble Apex Court, learned
counsel for the other party is duty bound not only to intimate the fact of death of
the party but also the names of the legal representatives and the limitation would
start to run from the date of intimation on names of legal representatives.
However, the LRs themselves had appeared and prayed to take them on record,
therefore, there was no occasion to file an application under order 22 rule 9 CPC
by the petitioner.
12. So far as the question that no separate application under Order 22
Rule 9 CPC had been filed and abatement having become final is concerned, the
said issue has been considered time and again by the Hon'ble Supreme Court and
most recently in the case of Om Prakash Gupta alias Lalloowa (Now Deceased)
and others vs. Satish Chandra (Now Deceased), reported in 2025 SCC OnLine SC
291, wherein in paragraph 23 the Hon'ble Supreme Court has held that when an
application praying for substitution is filed, then even assuming that it does not
have an express prayer for setting aside the abatement, such prayer should be read
as inherent in the prayer for substitution, in the interest of justice. The Supreme
Court referred to the earlier judgement in the case of Mithailal Dalsangar Singh
and others vs. Annabai Devram Kini and others, reported in (2003) 10 SCC 691.
13. In view of the above, the mere fact that no separate application under
order Order 22 Rule 9 CPC had been filed is inconsequential and looking to the
fact that within 90 days of intimation of death of deceased Munnu, who was the
original plaintiff, one class-II legal representative had appeared before the trial
Court and thereafter up to appearance of respondents No. 1 to 3, no intimation had
been given of existence of any class-I one legal representative, therefore in the
considered opinion of this Court, the appellate Court has taken an unduly harsh
view in holding that the proceedings under Order 9 Rule 13 CPC had abated,
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 20-03-2026
18:15:35
NEUTRAL CITATION NO. 2026:MPHC-JBP:22395
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though they had not abated because the legal representatives were duly on record
and separate application under Order 22 Rule 9 CPC was not required in view of
the peculiar circumstances of this case.
14. Therefore, this Court is unable to uphold the impugned order passed
by the appellate Court. Consequently, the petition is allowed. The impugned order
passed by the appellate Court is set aside and the order of the trial Court allowing
application under Order 9 Rule 13 CPC is brought back to life. The trial court
shall proceed in the trial as per law.
(VIVEK JAIN)
JUDGE
nks
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 20-03-2026
18:15:35