Bombay High Court
Mohd. Ismail S/O Sheikh Ibrahim vs Smt. Asha Wd/O Shankar Khobragade ... on 3 April, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.835 of 2013
Mohd. Ismail s/o Sheikh Ibrahim,
Proprietor Faizan Real Estate Corportion,
Aged about 58 years,
Occupation - Business,
R/o New Bazar, Golchha Marg,
Opp. Masjid, Sadar,
Nagpur-01. ... Petitioner
Versus
1. Smt. Asha wd/o Shankar Khobragade,
R/o Divte Layout, Ward No.10,
By the side of Deshmukh Layout,
Near Yeshwant Mahavidhaya,
Kalmeshwar, Nagpur.
2. Smt. Parvatabai w/o Vasant Selukar,
R/o Karne Layout, Ward No.15,
Behind Gajanand Mandir,
Kalmeshwar, Nagpur.
3. Maroti s/o Shankar Khobragade,
R/o Divte Layout, Ward No.10,
By the side of Deshmukh Layout,
Near Yeshwant Mahavidhaya,
Kalmeshwar, Nagpur.
4. Ranjana w/o Shankar Dudhbade,
Aged about 44 years,
Occupation - Agriculturist,
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R/o Kajari, Wardha Road,
Nagpur.
5. Shri Nathu s/o Shankar Khobragade,
Aged about 42 years,
Occupation - Agriculturist,
R/o Kalmeshwar, Tah.- Kalmeshwar,
Dist.- Nagpur.
6. Smt. Sunita w/o Bapurao Kamble,
R/o Tekdi Ward, Khari Ward,
Pandhurna,
District Chhindwara,
M.P. 480 334.
7. Smt. Baby w/o Ajay Vanjari,
R/o Behind Sut Girni,
Mahajan Wadi,
Hingna Road,
Nagpur 441 110.
8. Smt. Chandraprabha w/o Hemraj
Khobragade,
Aged about 45 years,
Occupation - Farmer.
9. Shri Hari s/o Pilaji Ambatkar,
Aged about 50 years,
Occupation - Agriculturist.
10. Shri Dilip s/o Pilaji Ambatkar,
Aged 45 years,
Occupation - Agriculturist.
11. Ramesh s/o Pilaji Ambatkar,
aged about 38 years,
Occupation - Agriculturist,
R/o Bazar Chowk, Kalmeshwar,
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Tah. & Distt. Nagpur 441 501.
12. Smt. Sharja w/o Keshav Ikhar,
Aged about 73 years,
Occupation - Household,
R/o Bazar Chowk,
Kalmeshwar,
Tah.- Kalmeshwar,
District - Nagpur.
*13.Smt. Kamalja w/o Rambhau Rakas,
Aged about 70 years,
Occupation - Household.
(* Petition dismissed against
Respondent No.13 vide Court's Order
dated 19-12-2014 and 20-2-2015)
14. Smt. Narmada w/o Ramesh Shelker,
Aged about 45 years,
Occupation - Household,
R/o Bazar Chowk,
Kalmeshwar,
Tah. & Distt. Nagpur 441 501.
15. Sau. Laxmi Dashrath Chettiyar,
Aged 45 years,
Occupation - Agriculturist.
16. Shri Jagannath Dashrath Chettiyar,
Aged 25 years,
Occupation - Agriculturist.
Both 15 16 R/o Bhuteshwar Nagar,
Gangabai Ghat Road, Nagpur-32.
17. Sau. Nirmala Chandrashekhar Malkhede,
Aged 43 years,
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Occupation - Agriculturist,
R/o Plot No.38,
Nagsen Nagar, Nagpur. ...Respondents
Shri J.A. Anthony, Advocate for Petitioner.
Coram : R.K. Deshpande, J.
rd
Date : 3 April, 2017
Oral Judgment :
1. This petition challenges the order dated 26-8-2011
passed below Exhibit 24 in Special Civil Suit No.1145 of 2007.
The Trial Court has rejected the application for condonation of
4 months and 27 days' delay caused in filing an application to
bring the legal representatives of the deceased-defendant
No.1-Shankar Gangaram Khobragade. It is held that the plaintiff
has stated in his application that after coming to know about the
death of the defendant No.1, he visited several places and
gathered the information about the legal heirs of the defendant
No.1, but the names of the legal heirs are not stated in the
application. It is further held that the application does not
provide any particulars of the place where the plaintiff is said to
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have visited for collecting such information. It is not in dispute
that in the application for permission to bring the legal
representatives of the defendant No.1 on record filed in the Trial
Court, the names of the legal representatives are mentioned
along with their addresses.
2. Notice before admission was issued by this Court on
27-6-2013. The matter is pending for admission since 2013 and
the suit is pending for adjudication since 2007. It is reported that
the respondent No.13, who is the original defendant No.5, has
also expired during the pendency of this petition and the steps
have not been taken to bring her legal representatives on record.
3. Rule. It is not necessary to issue fresh notice to the
respondents, in the facts and circumstances of the case.
4. There is no point in keeping this matter filed in the
year 2013, pending in this Court on the question of correctness of
the interlocutory order passed in the suit, which is filed in the
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year 2007 for specific performance of contract. It seems that the
Trial Court did not even issue notice to the proposed legal
representatives on the application for condonation of delay and
also for bringing the names of the legal representatives of the
defendant No.1 on record. No findings could have been recorded
on the question of knowledge of the order without issuing
notices. The names of the legal representatives of the defendant
No.1 are stated in the application for bringing their names on
record. The order impugned cannot, therefore, be sustained and
it can be set aside with a direction to the Trial Court to decide all
the applications pending before it after issuing notices to the
proposed legal representatives of the defendant No.1. It shall
also be permissible for the petitioner-plaintiff to file an
application for bringing the legal representatives of the defendant
No.13 on record along with the application for setting aside
abatement and for condonation of delay, if it is so advised. The
Trial Court can pass appropriate orders on such applications.
5. At this stage, it is brought to the notice of this Court
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that on 7-2-2014, the Trial Court permitted deletion of the names
of the defendant Nos.7, 8 and 9 from the array of defendants,
and that order is also made subject-matter of challenge in this
petition. The order being interlocutory in nature, does not call
for any interference at this stage, and it can be left open for the
petitioner to challenge it, if the ultimate decision in the suit goes
against him.
6. In the result, the petition is partly allowed. The order
dated 26-8-2011 passed below Exhibit 24 in Special Civil Suit
No.1145 of 2007, is hereby quashed and set aside. The Trial
Court to proceed with the matter in accordance with law keeping
in view the observations made by this Court. No costs.
Judge.
Lanjewar
