Bombay High Court
Govinda Damaji Sakharkar And ... vs Maharashtra State Road Transport ... on 8 June, 2016
Bench: Ravi K. Deshpande
1
sa89.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.89 of 2015
1. Govinda Damaji Sakharkar,
Aged about 62 years,
Occupation - Agriculturist.
2. Pandurang Shankarrao Balbudhe,
Aged about 51 years,
Occupation - Agriculturist.
3. Subhash Ramdas Ghangare,
Aged about 50 years,
Occupation - Agriculturist.
4. Maroti Laxman Fating,
Aged about 55 years,
Occupation - Agriculturist.
5. Sakharam Maroti Girde,
Aged about 58 years,
Occupation - Agriculturist.
6. Kundlik Baliram Kambli,
Aged about 65 years,
Occupation - Agriculturist.
All R/o Allipur, Tah. Hinganghat,
District Wardha. ... Appellants/
Ori. Defendants
on RA
Versus
Maharashtra State Road
Transport Corporation,
::: Uploaded on - 10/06/2016 ::: Downloaded on - 30/07/2016 04:40:42 :::
2
sa89.15.odt
Bombay, body corporate,
constituted under the Road
Transport Act, 1950, having
its Head Office, Maharashtra
Wahatuk Bhawan,
Dr. Anandrao Nair Road,
Bombay-400 008,
Divisional Office amongst
others, at Wardha,
District Wardha,
through Divisional Controller. ...Respondent/
Ori. Plaintiff
on RA
Shri S.D. Khati, Advocate for Appellants.
Shri V.G. Wankhede, Advocate for Respondent.
Coram : R.K. Deshpande, J.
Dated : 8 June, 2016
th
Oral Judgment :
1. On 25-2-2015, this Court passed an order as under :
" Heard Shri S.D. Khati, learned counsel for the
appellants.
Issue notice for final disposal of the second appeal to
the respondent on the following substantial question of law.
Whether death of some of the appellants would have
the effect of the proceedings abating as a whole or
whether the appeal at the instance of surviving
defendants was required to be adjudicated on merits?
sa89.15.odt
Notice, returnable on 18-3-2015.
Hamdast granted."
In terms of the aforesaid order, Shri V.G. Wankhede, the learned
counsel, appears for the respondent. Both the learned counsels agree
that the matter can be finally disposed of, as the substantial question
of law is already framed.
2.
Hence, Admit. Heard finally by consent of the learned
counsels appearing for the parties.
3. As a result of the incident, which occurred on 18-8-1984, the
damage was caused to the bus owned by the respondent-Maharashtra
State Road Transport Corporation, bearing registration No.MTE 8693,
at Sirasgaon. The incident, which occurred, was the burning of the
bus by the appellants-original defendants for redressal of their certain
demands against the Government. The respondent-original plaintiff
filed Special Civil Suit No.63 of 1985 claiming damages to the tune of
Rs.3,34,013/- along with interest. The suit was decreed by the Trial
Court on 16-6-1998 and the plaintiff is held entitled to recover an
amount of Rs.2,07,013/- from the defendant Nos.1 to 9, 12, 14, 15
sa89.15.odt
and 17 to 23 jointly and severally along with future interest at the rate
of 6% per annum from the date of the suit till its realization.
4. Out of twenty-three defendants, fifteen defendants preferred
Regular Civil Appeal No.92 of 2012, which was initially filed before
this Court and registered as First Appeal No.318 of 1999, and
subsequently upon change of valuation, transferred to the lower
Appellate Court and re-registered as Regular Civil Appeal No.92 of
2012. During the pendency of this appeal, four appellants,
viz. Ramesh Dadaji Wandile, Subhash Ramdas Ghangane, Suresh
Shankarrao Daf, and Waman Gopalrao Girade expired.
5. The appellants filed an application at Exhibit 19 for setting
aside abatement and for permission to substitute the names of the
legal representatives of the deceased-appellants on record. The
notices were issued by the lower Appellate Court on this application.
The respondent-MSRTC recorded its no-objection, but the learned
Principal District Judge, Wardha, by his order dated 19-8-2014,
dismissed the application at Exhibit 19 along with the another
application at Exhibit 21 for joining the legal representatives as the
party-appellants. Thereafter, the lower Appellate Court has proceeded
sa89.15.odt
to dismiss the appeal itself as abated by its separate order
dated 19-8-2014 passed below Exhibit 1, which is reproduced below :
"1. In view of rejection of application Exh.19 and the fact
that appellants no.3, 5, 12 & 14 have expired long back, their
legal representatives have not brought on record and in view of
decisions in Ram Sarup .vs. Munshi {AIR 1963 SC 553}, State
of Panjab .vs. Nathu Ram {AIR 1962 SC 89}, Rameshwar
Prasad .vs. Shambehari Lal {AIR 1963 SC 553}, S.M. Kalim,
son of S.M. Aziz .vs. S.M. Sarfuddin (expunged and substituted
vide order dt. 17.07.2002) reported in
AIR 2014 Patna 148, the ratio which has been referred order
below Exh.19 present appeal stands abated and, therefore,
disposed of. No order as to cost. Bill of cost be drawn
accordingly."
6. In the light of the aforesaid factual position, the substantial
question of law, as has already been reproduced, need to be
considered.
7. Though the decree passed by the Trial Court was against the
original defendant Nos.1 to 9, 12, 14, 15 and 17 to 23 holding them
jointly and severally liable to pay the decretal amount with interest,
some of the defendants did not prefer an appeal, and out of the
defendants, who preferred an appeal, four defendants expired.
Though the decree is styled as joint and several, in fact each of the
sa89.15.odt
defendants is made severally liable to make the payment of the
decretal amount. It is not the case where some of the defendants have
undertaken to indemnify the other defendants in respect of the
decretal amount. The lower Appellate Court has, therefore,
committed an error in holding that the appeal abated as a whole upon
death of some of the appellants/defendants. Even if some of the
appellants/defendants have expired, the decree would be executable
against the other appellants/defendants and the appeal did not abate
as a whole. The substantial question of law is, therefore, answered
accordingly.
8. Be that as it may. The appellants themselves moved an
applications at Exhibits 19 and 21 for substituting the names of the
legal heirs of the appellants, who expired. The respondent-MSRTC
gave its no-objection. The Trial Court rejected both these applications
solely on the ground that the appeal has abated as a whole. Once this
finding is set aside by this Court, the orders passed by the Trial Court
on the applications at Exhibits 19 and 21 would also not survive, and
on the basis of the no-objection granted by the respondent-MSRTC,
the Court ought to have allowed the applications.
sa89.15.odt
9. In the result, the second appeal is allowed. The order
dated 19-8-2014 passed below Exhibit 1 in Regular Civil Appeal No.92
of 2012 by the learned Principal District Judge, Wardha, is hereby
quashed and set aside. The matter is remitted back to the lower
Appellate Court to decide the appeal afresh by allowing the
applications at Exhibits 19 and 21 and permitting the appellants to
bring the legal representatives of the deceased-appellants on record.
No order as to costs.
ig JUDGE.
Lanjewar
