Bombay High Court
Mamtabai Maruti Mane Died Through ... vs Bhaguji Paraji Munde Died Through ... on 19 June, 2017
Bench: R.V. Ghuge
WP/5275/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5275 OF 2016
1. Mamtabai Maruti Mane
Deceased
2. Gyanoba Maruti Mane,
Age 60 years, Occ. Agri.,
R/o Wakdi Tq. Ambajogai,
District Beed.
3. Mahadev Maruti Mane,
Age 45 years, Occ. Agri.,
R/o Wakdi Tq. Ambajogai,
District Beed. ..Petitioners
Versus
Bhaguji Paraji Munde,
Deceased, Through L.Rs.
1. Parwatibai Bhagoji Munde
Age 52 years, Occ. H.H.
R/o Ladzari, Tq. Parali -
Vaijanath, Dist. Beed.
2. Babita Suresh Phad,
Age 28 years, Occ. H.H.
R/o Ladzari, Tq. Parali -
Vaijanath, Dist. Beed.
3. Mahadev Bhagoji Munde,
Age 25 years, Occ. Agri.,
R/o Ladzari, Tq. Parali -
Vaijanath, Dist. Beed.
4. Sindu Balaji Kendre
Age 22 years, Occ. H.H.
R/o Ladzari, Tq. Parali -
Vaijanath, Dist. Beed.
5. Rinku Santosh Phunde,
Age 20 years, Occ. H.H.
R/o Ladzari, Tq. Parali -
Vaijanath, Dist. Beed. ..Respondents
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WP/5275/2016
2
...
Advocate for Petitioners : Shri Anand D. Wange
Advocate for Respondent 3 : Shri Munde Sambhaji G.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 19, 2017
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioners / plaintiffs had moved an application Exhibit
12 in Regular Civil Appeal No.27 of 2008 praying for bringing the legal
heirs of the deceased defendant Bhaguji on record, who died on
2.1.2015. RCS No. 302 of 2006 was dismissed.
5. The petitioners moved Exhibit 12 on 25.1.2015, praying for
leave to bring L.Rs. of deceased respondent on record. By the
impugned order, the appeal Court has rejected application Exhibit
12. It is stated that RCA No.21 of 2008 has still not been disposed off
as abated.
WP/5275/2016
6. Learned counsel for the respondent / defendant relies upon
the draft affidavit in reply and submits that if sufficient reasons are
not set out, the application for bringing legal heirs deserves to be
rejected. He relies upon the judgment of the Honourable Apex Court
in the matter of Balwant Singh Vs. Jagdish Singh [(2010) 8 SCC 685],
to support his contention that if sufficient cause is not indicated, the
L.Rs. cannot be brought on record and the delay caused ought not to
be condoned.
7. Having heard the submissions of the learned Advocates for the
respective sides, I find that the defendant did not file any purshis in
the appeal proceedings under Order XXII Rule 10A of the CPC to
indicate that Bhaguji had passed away on 2.1.2015. A purshis dated
19.1.2015 indicating the death of Bhaguji was filed in RCS No.351 of
2013. The respondent, therefore, contends that based on the said
purshis filed in another proceeding, to which the L.Rs. of the
deceased petitioner are party, they have derived the knowledge of
the death of Bhaguji.
8. It appears from the record that Exhibit 12 was filed by the
petitioners after a span of 1 year and 24 days, pursuant to the demise
of Bhaguji, which is delayed by about 389 days. It is specifically
contended by the petitioners that firstly no purshis was filed by the
WP/5275/2016
Pleader of the deceased / defendant before the appeal court and
secondly, the delay in filing the application Exhibit 12 was neither
deliberate nor inordinate. The Honourable Apex Court in the Balwant
Singh's case (supra) was dealing with the delay of 778 days, in the
backdrop of the litigating parties having come to the knowledge of
the demise of a litigant. The Honourable Apex Court in this backdrop
concluded that the reasons were not sufficient and the delay of 778
days could not be condoned.
9. In the instant case, the period of limitation being 30 days,
renders the application Exhibit 12 delayed by 361 days. The suit
property at issue is an immovable property. Reasons cited are that
the petitioners are residents of different villages and did not get the
complete knowledge of the names and addresses of the L.Rs. of
Bhaguji and hence, beyond the limitation of 30 days, the delay of 361
days has occurred. I, therefore, do not find that the said delay could
be termed being deliberate or inordinate Moreover, the issue is
about an immovable property and the petitioners / appellants, whose
suit has been dismissed, would be rendered remediless and will
forever lose the suit property and their rights if any, in the said
property.
10. Learned counsel for the respondents submits that heavy costs
may be imposed on the petitioners if this petition is to be allowed.
WP/5275/2016
11. Considering the above, this petition is partly allowed. The
impugned order dated 21.3.2016 is quashed and set aside.
Application Exhibit 12 is allowed and the petitioners shall bring on
record the L.Rs. of deceased Bhaguji, within a period of four weeks
from today. In order to reduce the hardships of the respondents, the
petitioners shall deposit a total amount of Rs.5,000/- as costs before
the appeal Court within four weeks from today and the defendants
would be at liberty to withdraw the said amount in equal proportions
without conditions.
12. Rule is made partly absolute, accordingly.
13. By the consent of the parties RCA No. 21 of 2008 shall be
decided by the appeal Court as expeditiously as possible and
preferably on/or before 15.12.2017.
( RAVINDRA V. GHUGE, J. )
...
akl/d
