Bombay High Court
Rameshchandra Badriprasad Sahu And 4 ... vs Mohanlal Badriprasad Sahu And 17 Ors. on 22 May, 2026
23) SA 158-2008.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 158 OF 2008
APPELLANTS :- 1. Rameshchandra s/o Badriprasad
Ori. Defts. Sahu,
aged about 65 yrs. Occp- Cultivator,
2. Dineshkumar s/o Rameshchasndra
Sahu,
aged about 39 yrs. Occp- Service,
3 Rajeshkumar s/o Rameshchandra
Sahu, aged about 37 yrs. Occp-
education,
4. Yogeshkumar s/o Rameshchandra
Sahu, aged abut 31 yrs. Occp-
education,
All are Residents of Binda Bhavan,
Oppo. Manek Talkies, Tilak Road,
Akola, Taluka & District Akola.
5. Sau. Usha w/o Dineshchandra Sahu,
aged about 47 years, Occupation
-household work, Resident of C/o
Dineshchandra Gendalal Sahu, Gol
Ganj Galli, Hingoli, District Parbhani.
..VERSUS..
RESPONDENTS :- 1. Mohanlal S/o Badriprasad Sahu,
(Dead)
Aged about 70 years, Occupation
Landlord, Resident of Alsi Plots,
Akola, Taluka and District Akola.
.... Ori. Plaintiff
2. Ku. Nisha d/o Rameshchandra Sahu,
23) SA 158-2008.odt
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aged about 35 yrs. Occp- household
work (Died during pendency of
R.C.A.)
Respondent Nos. 4 to 11 3. Sushilabai Wd/o Dharampal Sahu,
are legal heirs of
Respondent no. 3. (Dead)
Respondent Nos. 10 and aged about 63 years, Household
11 are also dead.
work,.
4. [Smt. Meera wd/o Anil Sahu,
aged about 46 years,household work]
Deleted
5. Ku. Jyoti d/o Anil Sahu,
aged about 26 years,
6. Ku. Swati d/o Anil Sahu,
aged about 27 years,
7. Ku. Renuka d/o Anil Sahu,
aged about 22 years,
8. Ku. Komal d/o Anil Sahu,
aged about 19 years,
9. 9. Ku. Kirti d/o Anil Sahu,
aged about 20 years,
Nos. 3 to 9 Residents of Binda
Bhavan, Opposite. Manek Talkies,
Tilak Road, Akola, Taluka & District
Akola.
10. Ashok s/o Dharampal Sahu,
Aged about 60 years, Occupation -
Service, Resident of Rly. Colony,
Bhusaval, District Jalgaon.
Amendment carried out 10 Sunita wd/o Ashok Sahu..... (widow)
as per order dt. 20/9/22
(i) Aged about 55 years, occ: Housewife
10 Ashish s/o Ashok Sahu .... (son)
(ii) Aged about 37 years, occ: Nil
23) SA 158-2008.odt
3
10 Shirish s/o Ashok Sahu ...... (son)
(iii) Aged about 32 years, occ: Nil
All are Residents of Binda
Bhavan, Oppo. Manek Talkies,
Tilak Road, Akola,
Taluka & District Akola.
11. Ganesh s/o Dharampal Sahu,
Aged about 41 years, Occupation-
Physiotherapist, Medical Hospital
Bhilai. (MP). [LRs.]
Amendment carried out 11 Sunita wd/o Ganesh Sahu.....widow)
as per order dt. 20/9/22
(i) Aged about 50 years, occ: Housewife
C/o: In the House of Dr. Raut,
House No. 44, First Floor, Ratan
Colony, Sonajiki Wadi, Near Bhola
Ganesh Square, Mahal, Nagpur -
440 032.
11 Prateek s/o Ganesh Sahu..... (son)
(ii) Aged about 29 years, occ: Nil
C/o: In the House of Dr. Raut, House
No. 44, First Floor, Ratan Colony,
Sonajiki Wadi, Near Bhola Ganesh
Square, Mahal, Nagpur - 440 032.
12. Sohanlal S/o Badriprasad Sahu, Aged
about 68 years, Occupation Nil,
Resident of Vilas Nagar Amravati,
District Amravati.
13. Manoj s/o Sohanlal Sahu,
aged about 38 years, Occupation
business,
Resident of Vilas Nagar, Amravati,
District Amravati.
23) SA 158-2008.odt
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14. Vinod s/o Sohanlal Sahu,
aged about 31 years, Occupation
business,
Resident of Vilas Nagar, Amravati,
District Amravati.
15. Kamal s/o Sohanlal Sahu,
aged about 29 years, Occupation
business, Resident of Vilas Nagar,
Amravati, District Amravati.
Ref. to R.J. order 16. [Ku. Laxmi s/o Sohanlal Sahu,
dtd. 11/8/16
Appeal is abated against aged about 31 years,
R-16. Resident of Vilas Nagar, Amravati,
District Amravati.] Abated
Ref. to Court's order dtd. 17. [Kachrulal s/o Raghunath Joshi,
07/9/22
Appeal is abated against Aged about 83 years, Occupation -
R-17. business,
under the name and style of Kalyan
Hotel, Oppo. Manek Talkies, Akola,
Taluka and Distt. Akola.] Abated
18. Kanhiyalal s/o Prabhudas Kachalia,
aged about 65 years, Occupation
-Business under the name and style as
Ketan Sales, Oppo., Manek Talkies,
Tilak Road Akola, Tq. and District
Akola.
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Shri S.V. Sohoni, Advocate for Appellants.
Shri R.G.Kavimandan, Advocate for respondent nos. 1(A) to 1(B).
Shri V. G. Lohia, Advocate for the Respondent nos. 11(i) and 11(ii).
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 08.05.2026
PRONOUNCED ON 22.05.2026
JUDGMENT:
23) SA 158-2008.odt 5
1) Heard finally with the consent of learned advocates for the respective parties.
2) The present appeal is filed against the judgment and decree dated 14/01/2008 passed by the learned District Judge-2 Akola in Regular Civil Appeal No. 364/2000, by which, the learned First Appellate Court reversed the judgment and decree dated 17/03/1997 passed by the learned Civil Judge, Senior Division, Akola in Special Civil Suit No. 163/1993.
3) During the pendency of Reg. Civil Appeal No. 364/2000, the appellant in the said appeal (respondent No.1 herein) had expired. Although an application for bringing his legal representatives on record was filed and the same was allowed, amendment was not carried out in the memorandum of appeal. The learned First Appellate Court, however, allowed the appeal on merits. In this backdrop, the present second appeal came to be admitted vide order dated 07/09/2009 on the following
23) SA 158-2008.odt 6 substantial question of law:-
"Whether the judgment and decree passed by the first appellate court could be said to be void since appellant had already died when the judgment was delivered?"
4) It will be pertinent to state that initially, the appellant had filed Civil Application No. 4046/2008 inter alia praying for remanding the matter to the First Appellate Court for substitution of names of legal representatives of deceased respondent no. 1 (Mohanlal), who was the appellant in RCA No. 364/2000. However, the learned Advocate for the appellant did not press the said application and accordingly, the application came to be disposed of vide order dated 29/07/2009 by granting liberty to the appellant to raise substantial question of law in this regard in the present second appeal. This Court also granted liberty to the respondents to move an appropriate application before the District Court seeking permission to carry out amendment in the memorandum
23) SA 158-2008.odt 7 of appeal in Regular Civil Appeal No.364/2000, since the order permitting substitution of legal representatives of appellant in the said appeal was passed by the learned District Court and merely the ministerial act of pasting the amendment remained to be carried out.
5) Thereafter, the aforesaid substantial question of law was framed and the appeal was admitted vide order dated 07/09/2009.
6) Thereafter, the appeal was listed before this Court on 29/02/2016 in view of office objection that an appropriate amendment in the memo of Regular Civil Appeal was not carried out in compliance of order dated 29/07/2009.
7) Vide order dated 29/02/2016, this Court permitted the respondents /appellants in RCA to carry out the amendment within a period of eight weeks in the memorandum of appeal in RCA No.364/2000 in order to bring the legal representatives of deceased Mohanlal on record. Perusal of memorandum of appeal in RCA No.
23) SA 158-2008.odt 8 364/2000 will demonstrate that necessary amendment is still not carried out in the appeal memo. Perusal of the record will demonstrate that there is an office note which records that on 21/11/2005, an unknown person entered the Court Hall and destroyed the records of several cases including the record of RCA No. 364/2000. The record was ordered to be reconstructed. Original memorandum of appeal is not seen in record of RCA No.364/2000. Copy of appeal memo is not amended in order to incorporate names of legal representatives of appellant (respondent No.1 herein) in the said appeal.
8) Mr. Sohoni, learned Advocate for the appellants contends that although an application for bringing the legal representatives of deceased respondent no. 1 who is the appellant in Regular Civil Appeal was allowed, the names of his legal representatives were not actually brought on record. The learned Advocate places reliance on the Division Bench judgment of this Court in the case of Nari NCP and anr. V/s. Income Tax Officer
23) SA 158-2008.odt 9 and anr. reported in 2018 SCC OnLine Bom 11902 and contends that the appeal ought to have been dismissed as abated since the legal representatives of deceased appellant in the Regular Civil Appeal were not brought on record.
9) The contention of Mr. Sohoni, the learned Advocate for the appellants is that after the application for bringing the legal representatives of the deceased Appellant in Regular Civil Appeal was allowed, amendment ought to have been carried out within a period of 14 days as contemplated under Order VI, Rule 18 of the C.P.C. and failure to carry out amendment results in abatement of the appeal. He contends that the judgment passed in the appeal, which was abated, is a nullity and non est. The learned Advocate, therefore, contends that the present appeal deserves to be allowed.
10) It is difficult to accept the said contention. At the outset, it must be stated that Order VI, Rule 18 of the C.P.C. does not apply to appeals. It applies to amendment
23) SA 158-2008.odt 10 in pleadings. The term pleading is defined under Order VI, Rule 1 of the C.P.C. to mean a plaint or written statement. The memorandum of appeal is neither a plaint nor a written statement. The provisions of Order VI of the CPC deal with the pleading i.e. the plaint and the written statement and the same are not applicable to memorandum of appeal. The contention that the amendment in memorandum of appeal cannot be carried out after a period of 14 days unless expressly permitted and that failure to carry out amendment in the memorandum of appeal pursuant to orders dated 29/07/2009 and 29/02/2016, cannot be accepted.
11) As regards, the Division Bench judgment on which the reliance is placed by the learned Advocate, in the said case, the applications for bringing legal representatives on record were allowed on an earlier occasion, despite that, the legal representatives were not actually brought on record by amending the memorandum of appeal. Subsequently, fresh applications
23) SA 158-2008.odt 11 were filed at the stage of final hearing of the appeal in order to bring the legal representatives of the deceased appellant on record. The said applications came to be rejected, principally on the ground that repeated applications for the same cause i.e. bringing the legal representatives of the deceased appellant on record could not be entertained. However, a passing reference is made to Order VI, Rule 18 of the C.P.C. The ratio of the said order is certainly not that, the time frame of 14 days prescribed for carrying out amendment in a plaint or written statement will be applicable for carrying out amendment in the memorandum of appeal in order to bring the legal representatives of deceased parties on record pursuant to order permitting substitution.
12) In the considered opinion of this Court, the situation will be covered by the judgment of this Court in the case of Harjitkaur Kuljitsingh Kohli V/s. Padmavati J. Sethia and others reported in 2003 (4) BCR 567. It is held in the said case that when an application for
23) SA 158-2008.odt 12 bringing legal representatives on record is allowed and despite that the names of legal representatives are not formally included in the title clause, the omission will be of technical nature and also immaterial when the parties contest the proceeding on merits. In the present case, although the application for bringing legal representatives of the appellant in Regular Civil Appeal was allowed, the names were not brought on record by carrying out the amendment, however, the appeal was decided on merits after hearing both the sides. The objection that the appeal stood abated since the legal representatives of deceased appellant in Regular Civil Appeal were not brought on record, is therefore, technical in nature and is liable to be rejected.
13) It will also be appropriate to refer to the judgment in the case of Rukmini Dattatraya Naik (Smt.) and ors. V/s. Parmanand Lalchand Joshi and ors. reported in 2001 (2) BCR 141. In the said case, the learned Single Judge of this Court has placed reliance on
23) SA 158-2008.odt 13 earlier the Division Bench judgment in the case of H.H. Darbar Alabhai Vajsurbhai and ors. V/s. Bhura Bhaiya and ors. reported in AIR 1937 Bom 401 and has held that once an application for bringing the legal representatives on record is allowed, there is no question of abatement of appeal. It is also held that the responsibility of bringing legal representatives on record is either of the party or of the Court staff. It is categorically held that merely because title clause is not corrected, will not mean that the appeal stood abated.
14) In view of the aforesaid, it is held that Regular Civil Appeal did not abate since the application for bringing legal representatives of deceased appellant on record was allowed, although the title clause is not amended accordingly thereafter. The substantial question of law framed in the appeal will have to be answered in favour of the respondent(s) and against the appellants.
15) However, there is another aspect which needs to be considered.
23) SA 158-2008.odt 14
16) Record and proceedings in RCA No.364 of 2000 was destroyed by some unknown person. The record was ordered to be reconstructed. It appears from copy of an application dated 19/11/2005 which is at page No.38 in the 'B' file of RCA No.364 of 2000 that respondent No.5 in the appeal had expired and the appeal was dismissed against the respondent No.14 vide order dated 30/08/2005 passed below Exhibit 1. It appears from the reading of paragraph-3 of the application dated 19/11/2005 that deceased respondent No.5 was survived by legal heirs. Order dated 30/08/2005 is not on record probably because the record and proceedings was dismissed. However, there is a handwritten order at page No.13 in 'B' file in which following portion of order dated 30.08.2005 is recorded. The said part of order is reproduced herein below:-
"No further steps are taken against resptd. No.14 since long. Hence appeal is dismissed against respontd. No.14. So also the respontd. No.5
23) SA 158-2008.odt 15 Nisha reported to be dead in 2004. Her L.Rs. are not brought on record. The application was filed to bring the L.R. of respontd No.5 but further steps are taken since long. So the appeal abates against the respontd. No.5."
17) The appeal stood abated against the respondent No.5 and dismissed against the respondent No.14. Order sheet of the appeal from 09/12/2005 is available on record. Order sheets dated 22.03.2006, 24.03.2006 and 17.04.2008 record that the appeal stood abated against the respondent No.5.
18) At page No.38 in the 'B' file of RCA No.364 of 2000 there is an application dated 19/11/2005 in which following prayer is made:-
"It is therefore most humbly prayed that the application may kindly be allowed and the order dt.30.08.2005 passed below Exh.1 be kindly set aside and by condoning the delay,
23) SA 158-2008.odt 16 fresh notices be kindly issued to the respdt.
No.14 and the L.Rs. Of the respdt. No.5."
19) It appears that order for setting aside the abatement is not passed. In the tile cause of the judgment name of respondent No.5 is mentioned and in the portion where appearances of learned advocates are recorded it is mentioned that the appeal is stood abated against respondent No.5. However, the learned First Appellate Court has decided the appeal on merits. In view of the aforesaid, following substantial question of law arises for consideration:-
"Whether the abatement of appeal against deceased respondent No.5 results in abatement of appeal in its entirety and is the judgment and decree passed by the learned First Appellate Court void in view of said abatement?"
20) The order is pronounced during vacation. Learned Advocates for the respective parties, except Mr.
23) SA 158-2008.odt 17 R.G. Kavimandan, Advocate for respondent Nos.1(A) and (B), are not present. Office is directed to send a separate communication to the respective learned advocates, who are not present, on their registered email address and cell phone numbers.
21) Stand over 24.06.2026.
(ROHIT W. JOSHI, J.)
Khapekar