Bombay High Court
Umesh S/O. Narayanrao Masal vs Dilip S/O. Mahipatrao Masal And ... on 26 September, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.341 OF 2016
Umesh s/o Narayanrao Masal,
Aged 40 years, R/o Gurukrupa Nagari,
Plot No.75, Near Shraddha Nagar,
Wadgaon, Tq. & Dist. Yavatmal. ....... APPELLANT
...V E R S U S...
1] Dilip s/o Mahipatrao Masal,
Aged 70 years,
Occ: Medical Practitioner,
R/o Ramekar Wada, Near State Bank
Square, Yavatmal, Tq. & Dist. Yavatmal.
2] Smt. Vimlabai wd/o Narayanrao Masal,
Aged 59 years, R/o Kolura,
Tq. Ner, Dist. Yavatmal.
3] Nilesh s/o Narayanrao Masal,
Aged 36 years, R/o Kolura,
Tq. Ner, Dist. Yavatmal.
4] Sau. Vaishali w/o Balasaheb Naik
Aged 38 years, R/o Samata Colony,
Near Ram Mandir, Parbhani,
Tq. & Dist. Parbhani. ....... RESPONDENTS
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Shri A.V. Bhide, Advocate for Appellant.
Shri K.V. Kotwal, Advocate for Respondent No.1.
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CORAM: R.K. DESHPANDE, J.
th SEPTEMBER, 2016.
DATE: 26
ORAL JUDGMENT
1] On 18.07.2016 this Court condoned 968 days delay caused
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in filing the second appeal and thereafter passed the following order
framing the substantial question of law:
Second Appeal Stamp No.2701 of 2016 :
Heard Shri Bhide, the learned counsel for the appellant.
The substantial question of law, which arises in the
present appeal, is as under :
igIn the absence of Regular Civil Appeal No.40 of 2011
being closed for judgment, whether the lower Appellate Court
could have proceeded to decide the appeal on merits
on 11-3-2013, particularly when a pursis was placed on
record on 6-3-2013 intimating that the respondent in the
appeal (original plaintiff) has expired?
Issue notice for final disposal of the matter, since the
consideration is for remand of the matter, returnable
on 19-9-2016.
Service by RPAD in addition to regular mode, is
allowed.
2] In response to the notice issued for final disposal of the
matter, Shri K.V. Kotwal, the learned counsel appearing for the original
plaintiff. In spite of service of notice, the respondent Nos.2 and 3 are
absent.
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3] From the roznama of Regular Civil Appeal No.40 of 2011 it
seems that the final hearing of the matter commenced on 15.12.2012
and it went till 07.03.2013. On 06.03.2013 i.e. one day prior to such
hearing a pursis was filed intimating that the original respondent in
Regular Civil Appeal No.40 of 2011 expired. Thus, before conclusion of
hearing the intimation was given to the court about the death of the
original respondent. The lower Appellate Court could not have therefore,
proceeded to decide the matter on merits on 11.03.2013. The substantial
question of law framed by this Court is answered accordingly.
4] In the result, the second appeal is allowed. The judgment
and order dated 11.03.2013 passed in Regular Civil Appeal No.40 of
2011 is hereby quashed and set aside. The matter is remitted back to the
lower Appellate Court to decide it on its own merits in accordance with
law. The parties to appear before the lower Appellate Court
on 24.10.2016. The lower Appellate Court shall decide the matter within
a period of three months thereafter. The appellant before the lower
Appellate Court is permitted to bring the legal representatives of the
respondent on record.
JUDGE
NSN
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