Bombay High Court
Umashankar Dhannu Koli (Dandge) vs Ajabrao S/O Ananda Awachar And ... on 27 October, 2015
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1302 OF 2011
Umashankar Dhannu Koli (Dandge)
aged 75 years, Occ. Agriculture Labourer,
R/o. Sati Fail, Khamgaon,
Distt. Buldana PETITIONER
...VERSUS...
1]
Ajabrao Ananda Awachar,
aged Major,
2] Vasant Ananda Awachar,
aged major,
3] Anjana D/o Ananda Awachar,
aged minor, through Guardian
Respondent No.5
4] Savita d/o. Anand Awachar,
aged minor, through Guardian,
Respondent No.5.
5] Sou. Kamlabai Anand Awachar
(dead through L.Rs)
a] Ajabrao Anandrao Awachar,
b] Vasanta @ Balu Anandrao Awachar,
6] Ramdhan Ananda Awachar,
aged Major,
7] Prabhakar Yashwant Awachar,
aged major,
All R/o. Vilalge Dhapti, Tq. Khamgaon,
Distt. Buldhana.
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8] Madhusudan Purushottam Kulkarni,
aged Major, R/o. Nana Ervande Chawl,
Kalyan Mumbai.
9] Sanjay Shriram Kulkarni,
aged Major, R/o. MIT-104, D-Sector,
Near Indira Nagar Police Line,
Mandidip, Distt. Raisen (M.P.)
10] Sub Divisional Officer,
Khamgaon, Distt. Buldana.
11] Tahsildra, Khamgaon,
Distt. Buldana. ig RESPONDENTS
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Shri S.G.Joshi, counsel for Petitioner.
None for Respondents.
Shri H.D.Dubey, AGP for Respondent nos. 10 and 11
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CORAM: R. K. DESHPANDE, J.
th
DATE : 27 OCTOBER, 2015 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard the matter finally by consent of the
learned counsels appearing for the parties.
2] The trial Court dismissed the application filed by
the plaintiff for condonation of delay caused in bringing the
names of the L.Rs of the original defendant No. 8 -
Purushottam Vyankatesh Bramhan and defendant No. 9 -
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Shriram Vyankatesh Bramhan on record. The application
does not state the number of days delay caused in filing such
application. The trial Court has held that the plaintiff has not
disclosed either the source of information about the death of
defendant Nos. 8 and 9 or the date/month/year of the
knowledge of the plaintiff about the death of defendant Nos.
8 and 9. The Court has held that the application is vague and
unspecific and the plaintiff was not diligent in preferring the
application.
3] The undisputed factual position is that, the
defendant No. 8 died on 13.01.1995, whereas the defendant
No.9 died on 11.12.1995. The suit in question was filed in
the month of September, 2008. The plaintiff claims that he
was not aware about the death of the defendant nos. 8
and 9. It is his claim that during the pendency of the suit, he
came to know that the defendant nos. 8 and 9 had expired
even before the filing of the suit.
4] In view of the aforesaid undisputed factual
position, the trial Court ought to have believed the statement
made in the application that the plaintiff was not aware about
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the death of the defendant nos. 8 and 9. Obviously, if the
plaintiff was aware of it, then there was no reason for him to
join the defendant nos. 8 and 9 as party to the suit filed in the
month of September, 2008. The plaintiff was in fact required
to join the legal representatives of the defendant nos. 8 and 9
as party to the suit in question.
5] Once the fact that the defendant nos. 8 and 9
were not alive on the date of filing of the suit is accepted,
then the provision of Order XXII, Rule 3 of C.P.C. to bring the
legal representatives of the defendant nos. 8 and 9 on record
was not at all attracted. The said provision is attracted only in
cases where the death has occurred during the pendency of
the suit. The trial Court has, therefore, committed an error in
holding that the application was vague and the plaintiff has
neither disclosed the source of information about the death of
defendant nos. 8 and 9 or the date/month/year of the
knowledge of the plaintiff about such death. The trial Court
ought to have treated the application in question as one for
joining the legal representatives of the defendant nos. 8 and
9 as party to the suit, leaving the question of limitation in
institution of the suit open to be decided in the suit.
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6] In the result, the writ petition is allowed. The
order dated 05.02.2010 passed below Exh. 54 in Regular
Civil Suit No. 114 of 2008 is hereby quashed and set aside.
The application at Exh. 54 is treated as one for joining the
legal representatives of the defendant nos. 8 and 9 as party
to the suit. Such amendment be carried out within a period
of two weeks from the date of first appearance of the parties
before the trial Court. It is, however, made clear that the
question of limitation for institution of suit against the legal
representatives of the deceased defendant nos. 8 and 9 on
record is kept open to be agitated on its own merits.
Rule is made absolute in these terms. No order
as to cost.
JUDGE
Rvjalit
