Mahadeo S/O Champatrao Karluke ... vs State Of Maharashtra Through Its ...
2016 Latest Caselaw 1784 Bom

    44-J-SA-184-14                                                                       1/7


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                               NAGPUR BENCH, NAGPUR.

                                SECOND APPEAL NO.184 OF 2014




                                                         
    1.  Mahadeo s/o Champatrao Karluke




                                                        
         Aged about 46 years, Occ. Cultivator 

    2.  Nago s/o Champatrao Karluke
         Aged about 40 years, Occ. Culto
     




                                                  
        Both R/o Mahakal, Post : Nalwadi, 
        Tah and Dist. Wardha.          ig                   ... Appellants. 

    -vs-
                                     
    1.  State of Maharashtra
         Through its Collector, 
         Wardha 
             


    2.  Raju s/o Pundlikrao Telang
         Aged about 44 years, Occ. Cultivator, 
          



    3.  Vijay s/o Pundlikrao Telang
         Aged about 44 years, Occ. Cultivator, 





    4.  Kalyanrao s/o Shankarrao Jadhav,
         Aged about 58 years, 
         Occ. Cultivator  (Dead)                

         Respondent Nos.2 and 3 are r/o 





         Mahakal, Post : Nalwadi, 
         Tah & Dist. Wardha.                                ... Respondents. 



    Shri S. V. Sohoni, Advocate for appellants. 
    Shri H. R. Dhumale, Assistant Government Pleader for respondent No.1. 
    Shri S. K. Bhoyar, Advocate for respondent Nos.2 and 3. 




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     44-J-SA-184-14                                                                                2/7


                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : April 25, 2016

Oral Judgment :

This appeal filed under Section 100 of the Code of Civil

Procedure, 1908 (for short, the Code) is by the original plaintiffs who are

aggrieved by the order passed by the Appellate Court rejecting the

application that was filed for bringing on record the legal representatives of

respondent No.4. The appellants are also aggrieved by the order passed

below Exhibit-1 by the Appellate Court disposing of the said appeal as having

abated.

The appellants-original plaintiffs had filed R.C.S. No.160 of 2003

for cancellation of sale deed dated 20/04/2003 along with a prayer for

permanent injunction. The trial Court dismissed the suit by judgment dated

19/04/2004. Being aggrieved, the plaintiffs filed Regular Civil Appeal

No.160 of 2010. During pendency of said appeal, the appellants learnt on

19/10/2013 the respondent No.4 had expired on 12/08/2011. Hence, an

application for bringing on record the legal representatives came to be filed.

On 17/01/2014, the Appellate Court rejected said application on the ground

that simlicitor application for bringing on record the legal representatives of

respondent No.4 without any prayer for condoning delay was not

maintainable. It therefore dismissed the said application. Thereafter a

consequential order came to be passed that the appeal stood abated as the

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legal representatives of respondent No.4 were not brought on record. Being

aggrieved by disposal of the appeal as having abated, the original plaintiffs

have filed the present second appeal.

2. Shri S. K. Bhoyar, the learned counsel for respondent Nos.2 and 3

at the outset raised a preliminary objection to the maintainability of appeal

on the ground that the Appellate Court had refused to set aside the

abatement of appeal against respondent No.4. Against said order, it was

submitted that the remedy of appeal under provisions of Order XLIII Rule

1(k) of the Code was available. The learned counsel by placing reliance on

the judgment of Honourable Supreme Court in AIR 1983 Supreme Court

676 Madan Naik (dead) by Lrs) and ors v. Mst. Hansubala Devi and ors.,

submitted that disposal of an appeal as having abated did not result in any

decree being passed and therefore a second appeal against such adjudication

was not maintainable.

3. Shri S. V. Sohoni, the learned counsel for the appellants submitted

that as the appeal was disposed of as having abated, the only remedy

available was by way of filing an appeal under Section 100 of the Code. He

submitted that as the Appellate Court did not condone the delay in bringing

on record the legal representatives of respondent No.4 and rejected said

application, the present appeal was maintainable. The learned counsel

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placed reliance on the judgment of Honourable Supreme Court in 2005 (1)

MhLJ Shyam Sunder Sarma v. Pannalal Jaiswal and ors. to urge that

against an order passed by the Appellate Court refusing to condone delay,

the remedy by way of second appeal was available.

4. Having heard the respective counsel for the parties, the following

question requires determination :

" When the Appellate Court rejects an application for bringing on record the legal representatives of a deceased respondent and

thereafter consequently disposes the appeal as having abated, whether a second appeal under Section 100 of the Code would be maintainable ?"

Certain facts are not in dispute. During the pendency of Regular

Civil Appeal No.160 of 2010, the appellants learnt about the death of

respondent No.4 and hence an application for bringing on record the legal

representatives was filed on 13/11/2013 under the provisions of Order XXII

Rule 4 of the Code. This application came to be rejected by the Appellate

Court by order dated 17/01/2014. The prayers made by the appellants

included a prayer for setting aside the abatement and for bringing on record

the legal representatives. The respondent No.4 had expired on 12/08/2011

and therefore as his legal representatives were not brought on record within

a period of 90 days, the proceedings abated against the said respondent. In

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effect the application below Exhibit-16 was for bringing on record the legal

representatives of respondent No.4 and for setting aside the abatement of the

appeal.

At this stage it is necessary to refer to the provisions of Order XXII

Rule 11 of the Code. As per said provision, while applying Order XXII to

appeals, a respondent in an appeal would stand included. In view thereof

provisions of Order XXII of the Code would also apply to an appeal.

Reference in this regard can be made to the decision of the Nagpur High

Court in Ganpat vs. Shri Maruti Sansthan, AIR 1952 Nagpur 181. Hence,

the application below Exhibit-16 moved by the appellants would have to be

treated as one filed under provisions of Order XXII Rule 4 read with

provisions of Order XXII Rule 9(2) of the Code.

5. Under provisions of Order XLIII Rule 1(k) of the Code, an appeal

is maintainable against an order refusing to set aside the abatement or

dismissal of a suit. In Madan Naik (supra) a somewhat identical situation

was considered by the Honourable Supreme Court and in paragraph 8

thereof it was held as under :

" 8. .... Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9(1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing the first appeal, only course open is to move the Court for setting aside abatement. An order

44-J-SA-184-14 6/7

under Order 22, Rule 9(2) C.P.C. refusing to set aside abatement, is

specifically appealable under Order 43, Rule 1(k). Such an adjudication if it can be so styled would not be a decree as defined in Section 2(2) C.P.C.

Section 100 provides for second appeal to the High Court from every decree passed in appeal by any Court subordinate to the High Court on the grounds therein set out. What is worthy of notice is that second appeal lies

against a decree passed in appeal. An order under Order 22 Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected

as incompetent."

In view of aforesaid, it is clear that once such application filed

under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of

an appeal under provisions of Order XLIII Rule 1(k) of the Code would be

available.

The judgment of the Honourable Supreme Court in Shyam

Sunder Sarma (supra) which was relied upon by the learned counsel for the

appellants is with regard to the remedy available when the delay in filing an

appeal under Section 96 of the Code is not condoned. In paragraph 10 of

aforesaid judgment it has been observed thus :

"10. .... An appeal registered under rule 9 of Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning

44-J-SA-184-14 7/7

the delay in filing that appeal when dismissed on the refusal to condone the

delay is nevertheless a decision in the appeal."

6. From the aforesaid, it is clear that if the delay in filing the appeal

is not condoned, a second appeal under Section 100 of the Code would be

maintainable. However, when the Appellate Court refuses to set aside the

abatement under provisions of Order XXII Rule 9(2) of the Code and rejects

such application, remedy under provisions of Order XLIII Rule 1(k) of the

Code would be available.

7. In view of aforesaid, it is held that against the order passed by the

Appellate Court below Exhibit-16 dated 17/01/2014 as well as the order

passed below Exhibit-1 on the same day, the remedy of appeal under

provisions of Order XLIII Rule 1(k) of the Code would be available to the

appellants. In that view of the matter, the preliminary objection raised on

behalf of respondent Nos.2 and 3 is upheld. It is held that the second appeal

against aforesaid order is not maintainable. It is open for the appellants to

avail the appropriate remedy under provisions of Order XLIII Rule 1(k) of the

Code. It is made clear that this Court has not examined the correctness of

the impugned orders. Order accordingly. No costs.

JUDGE

Asmita