(BY SHRI ANENDRA SINGH PARIHAR - ADVOCATE) v. T h is petition coming on for orders this day, cou rt

MR. (BY SHRI ANENDRA SINGH PARIHAR - ADVOCATE) .....PETITIONER AND

#4. JAGDISH S/O SHRI RAMKISHAN, AGED ABOUT 45 Y E A R S , OCCUPATION: AGRICULTURE R/O VILLAGE SUKHLIYA KSHIPRA DISTT. DEWAS (MADHYA PRADESH) VISHNU THAKUR S/O SHRI RAMKISHAN, AGED ABOUT 42 YEARS, OCCUPATION: AGRICULTURE SUKHLIYA KSHIPRA TEH. AND DIST. DEWAS (MADHYA PRADESH) SMT. PREMLATA W/O LATE SHRI RAMKISHAN OCCUPATION: HOUEWIFE SUKHLIYA KSHIPRA TEH. AND DIST. DEWAS (MADHYA PRADESH) THROUGH COLLECTOR STATE OF M.P. COLLECTOR OFFICE, MOTI BANGLA DIST. DEWAS (MADHYA PRADESH) (BY SHRI MAYANK MISHRA - P.L.) T h is petition coming on for orders this day, t h e cou rt passed the .....RESPONDENTS following: ORDER Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 22-12-2023 10:16:37 2 This Miscellaneous Petition is filed under Article 227 of the Constitution of India has been preferred challenging the order dated 2/11/2022 passed by Ist District Judge, Dewas in regular civil suit No.A/169/2018 whereby application under Order XXII Rule 10 of CPC and application under Section 5 of the Limitation Act, 1963 filed on 20/10/2022 have been rejected.

#2. The grounds mentioned in the petition are that the petitioner/plaintiff filed a contract for specific performance of the suit and permanent injunction with the pleading that the agreement dated 6/12/2010 was executed by the respondent Nos.1-3 to sell the suit properties to the petitioner and the part consideration of amount of Rs.8,56,000/-was also paid by cheque but the sale deed was not executed. During the pendency of the suit, the petitioner filed an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in bringing the legal representatives of the deceased respondent No.2/Vishnu on record. Further another application under Order XXII Rule 10 of CPC was filed for setting aside the delay occurred in filing the application for bringing legal representatives of the deceased Vishnu on record. The Trial Court dismissed the said application mainly on the ground of delay and latches, on account of careless attitude of petitioner in not bringing on record the LRs of deceased Vishnu despite repeated opportunities ignoring the law laid down by the Apex Court in the cases of Thomson Press (India) Limited Vs. Nanak Builders and investors Pvt. Ltd and Ors. reported in (2013) 5 SCC 397 and Vidhur Impex and Traders (P) Ltd. Vs. Tosh Apartments (P) Ltd. reported in (2012) 8 SCC 384.

#3. After hearing learned counsel for the parties and upon perusal of the order-sheet dated 2/11/2022, it becomes evident that the plaintiff was aware of death of defendant No.2/Vishnu as the fact of death of Vishnu is recorded in Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 22-12-2023 10:16:37 3 the order-sheet dated 7/8/2014. The petitioner did not proceeded to bring the legal representative of the deceased Vishnu on record till the decision of the case which was pronounced on 3/11/2015. The matter was remanded by the High Court of M.P., Bench at Indore in Appeal No.943/2015 by order dated 10/9/2018 and the case was restored on 6/10/2018 but petitioner did not take any step to bring on record the legal representatives of defendant No.2/Vishnu on record for a period of 4 years and the application under Section 5 of limitation Act, 1963 alongwith the application under Order XXII Rule 10 of CPC r/w Section 151 of CPC was dismissed. The matter is not covered by Order XXII Rule 10 CPC. It is a matter of Order XXII Rule 9 of CPC. The law laid down by the Apex Court in the case of Thompson Press(supra) and Vidhur Impex (supra) in not applicable in the present case.

#4. As per the Annexure P-4, the date of death of defendant No.2/Vishnu is 9/3/2012 and as per Annexure P-1, the suit has been filed on 5/7/2013 impleading deceased Vishnu as defendant No.2 and the application on behalf of plaintiff/petitioner under Order XXII Rule 10 of CPC r/w Section 151 of CPC for bringing the legal representatives of deceased Vishnu on record alongwith application under Section 5 of the Limitation Act, 1963 was filed on 20/10/2022.

#6. In view of the aforesaid, I find no illegality or perversity in the order impugned.

#7. Accordingly, the petition is dismissed. (GAJENDRA SINGH) JUDGE Pramod Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 22-12-2023 10:16:37