HIRALAL SHRI KANHAIYALAL YADAV Vs. GYARSIBAI

JUDGEMENT

(1.) The appellant has preferred this appeal being aggrieved by the-order dtd. 14/3/2022 passed in Original Civil Suit No.02A/2015, by the Learned Seventh Additional District Judge, Indore whereby the application preferred for substitution of legal heirs of plaintiff due to his demise has been rejected and the suit is dismissed as abated.

(2.) The case of the petitioner in nutshell is that plaintiff-Hiralal (being son of Shri Kanahaiyalal Yadav, the original owner suit land) filed a civil suit against the defendants for the relief of declaration and injunction, a written statement was also filed by the defendants wherein they have disputed the factum of execution of will by plaintiff. During the pendency of the trial sole plaintiff-Hiralal died on 2/10/2019 and his legal representatives were not aware of the pendency of the present suit could not contact the counsel. Thereafter counsel himself contacted the LRs of plaintiff and informed them about the case, then an application under Order 22 Rule 3 of CPC was filed, however, the application was filed after 165 days from the death of plaintiff, therefore the application was dismissed on merits vide the impugned order, hence the present appeal.

(3.) Learned counsel submitted that counsel for the plaintiff was regularly appearing before the trial Court and was proceeding with the matter. The counsel was not aware of the death of plaintiff and the legal heirs of the plaintiff who happens to be illiterate labourers unaware of the pendency of the suit, therefore, they did not contact their counsel. Counsel further submitted that the defendants are the real relatives to the plaintiff and they were bound to inform the death of plaintiff before the trial Court, but they have not informed about the death of plaintiff neither to the counsel for the plaintiff nor before the trial Court. When the counsel for the plaintiff came to know about the death of plaintiff, he himself went to the village of the plaintiff and informed about the pendency of the suit, thereafter an application under Order 22 Rule 3 of CPC was filed by the LRs of plaintiff with a delay of 165 days, however, the same was not accompanied with an application for condonation of delay in preferring the application.