Bombay High Court
Shyamlal Jagannath Rahangdale ... vs Parashram S/O. Raghobaji Thakre on 17 March, 2017
Bench: A.S. Chandurkar
946-J-AO-21-16 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
APPEAL AGAINST ORDER NO.21 OF 2016
1. Shyamlal Jagannath Rahangdale,
aged about 56 years, Occ. Cultivator,
R/o Bhandabodi, Tah. Khairlanji,
District Balaghat.
2. Fekanbai wd/o Jhanaklal Ambule
aged about 56 years, Post Khairi,
Powaritoli, Tah. Khairlanji,
District Balaghat (M.P.)
3. Shankar s/o Balachand Ambule,
aged about 48 years, Post Khairi,
Powaritoli, Tah. Khairlanji,
District Balaghat (M.P.)
4. Kamlabai w/o Thanira Turkar
Aged about 56 years. Occ. Cultivation.
R/o Bhajiyadand, Post Amai,
Tah. Khairlanji,
District Balaghat (M.P.)
5. Imlabai w/o Jhanaklal Baghele,
Aged about 50 years, Occ. Cultivation,
R/o Rengezari, Post Rampayali,
Tah. Waraseoni, Dist. Balaghat (M.P).
6. Smt Nirmalabai w/o Hirbaji Rahangdale
Aged about 46 years, Occ. Cultivation,
R/o Shivanghat, Tah. Khairlanji,
District Balaghat (M.P.)
7. Urmilabai w/o Ishwari Parihar
Aged about 46 years, Occ. Cultivation,
R/o Khairi, Tah. Khairlanji,
District Balaghat (M.P.)
8. Champabai w/o Dashrathji Thakre,
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946-J-AO-21-16 2/8
Occ. Cultivation, R/o Post Lawani,
Tah. Khairlanji, District Balaghat (M.P.)
9. Tundilal s/o Nanhu Gautam,
Aged about 67 years, Occ. Cultivator &
Service & Retired, R/o 109, Savitri Apartment,
Buty Layout, Laxmi Nagar, Nagpur 22.
10. Anjanabai w/o Sukhlal Sharnagat
Aged about 72 years, R/o Rengezari,
Post Amai, Tah. Waraseoni,
Dist. Balaghat (M.P.). ... Appellants.
-vs-
Parashram s/o Raghobaji Thakre
Aged about 75 years, Occ. Agriculturist
R/o Kudwa, Tah. & Dist. Gondia ... Respondent.
Shri M. R. Johrapurkar, Advocate for appellants.
Shri D. L. Dharmadhikari, Advocate for respondent.
CORAM : A.S.CHANDURKAR, J.
DATE : March 17, 2017
Oral Judgment :
By this appeal filed under provisions of Order XLIII Rule 1(k) of
the Code of Civil Procedure, 1908, the appellants have challenged the order
passed by the Appellate Court dated 02/02/2016 by which it has refused to
condone delay in bringing on record the legal heirs of one of the appellants.
2. The facts in brief are that one Nanhu was the original plaintiff
who had filed suit for specific performance of agreement dated 17/08/1981.
946-J-AO-21-16 3/8
This suit was filed against the respondent herein. The trial Court by its
judgment dated 03/11/1989 dismissed the aforesaid suit which decree was
challenged in appeal. The original plaintiff Nanhu expired on 21/02/1999.
The appeal which was initially filed before this Court was transferred to the
District Court at Gondia. On 19/10/2004 said appeal at the instance of the
legal heirs of Nanhu came to be dismissed in default. On 16/11/2004
restoration application for restoring the appeal was filed by some of the
appellants. By order dated 17/06/2011 this application came to be allowed
and the appeal was directed to be re-admitted. This order was challenged by
the respondent herein by filing CRA No.141/2011. By order dated
21/12/2012 the revision application came to be allowed and the Appellate
Court was directed to reconsider and decide the restoration application.
Thereafter on 10/07/2014 the Appellate Court rejected the restoration
application. This order was challenged by the legal heirs of the original
plaintiff-Nanhu and on 31/08/2015 Appeal from Order No.148/2014 was
allowed with costs. Thereafter one of the legal heirs of the original plaintiff
Tundilal filed an application for bringing on record the legal heirs of
appellant Nos.2 and 3 on record. This application was not pressed. The
subsequent application filed by one Shyamlal along with application for
condonation of delay was heard by the Appellate Court and by the impugned
order the Appellate Court has refused to condone the delay in filing the said
application. Hence said order is challenged in this appeal.
946-J-AO-21-16 4/8
3. Shri M. R. Johrapurkar, learned counsel for the appellants
submitted that after the death of the original plaintiff the legal heirs had
prosecuted the appeal before the District Court. On 10/09/2004 one
Bhaganbai who was one of the appellants expired after which the other legal
heirs had filed application for restoration. As no appeal was pending from
19/10/2004 till 17/06/2011, the other legal heirs could not be brought on
record. He submitted that in the civil revision application, some of the legal
heirs had been impleaded by the respondent himself while some legal heirs
had filed Appeal from Order No.148/2014. According to him, the estate of
the deceased plaintiff was represented by some of his legal heirs and
therefore the Appellate Court should have condoned the delay as the same
was not deliberate. In that regard he placed reliance on the decisions in
Piara Singh and ors vs. Natha Singh and ors AIR 1991 SC 1529 and K.
Rudrappa vs. Shivappa AIR 2004 Supreme Court 4346. According to him
absence of prayer to set aside the abatement should not be a reason for not
condoning the delay in bringing on record the legal heirs. He therefore
submitted that the impugned order deserves to be set aside.
4. Shri D. L. Dharmadhikari, learned counsel for the respondent
supported the impugned order. According to him, the legal heirs of the
original plaintiff were not at all diligent in prosecuting the proceedings. He
submitted that even before the appeal was dismissed in default, one of the
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appellants had expired. Merely because the respondent vide CRA
No.141/2011 had impleaded the legal heirs, same cannot be a ground for
condoning delay especially when these legal heirs were not brought on
record before the trial Court. The appeal preferred by some of the legal
heirs vide AO No.148/2014 was also without said legal heirs being
impleaded in the trial Court. He then submitted that the application below
Exhibit-8 was not pressed without any justifiable reason and Shyamlal had
no locus to file the application below Exhibit-28. In absence of any prayer
for setting aside the abatement, the applicants could not have prayed only
for having the delay condoned. He submitted that the Appellate Court has
given proper reasons for not condoning the delay. He placed reliance upon
the decisions in Rama Kala vs. Deputy Director (Consolidation) 1997(7)
SCC 498, Lal Chand vs. Paras Ram 2000(5) Supreme 26, Madan Naik vs.
Hansubala Devi 1983(3) SCC 15 as well as the judgment of learned Single
Judge in M/s Roshanally and Co. vs. Janki Naraynadas Mudnaney and
ors. AIR 1991 Bombay 391 and Amakka Shiva Narandekar vs. Dadubhau
Narandekar since deceased by his L.Rs. 2005(1) Mh.L.J. 1129.
5. I have heard the learned counsel for the parties at length and I
have given due consideration to their respective submissions. The appellants
are the legal heirs of original plaintiff who had filed a suit for specific
performance. After the death of the original plaintiff, his legal heirs were
946-J-AO-21-16 6/8
brought on record before the Appellate Court. The legal heirs were on record
when the appeal came to be dismissed in default on 19/10/2004. Though
one legal heir Bhaganbai expired on 10/09/2004, the other legal heirs had
filed the application for restoration of appeal. The subsequent proceedings
being CRA No.141/2011 and AO No.148/2014 indicate that the same were
prosecuted by the legal heirs of one Saganbai who expired on 02/04/2010.
The application below Exhibit-28 for bringing on record the legal heirs was
moved by Shyamlal, son of Bhaganbai.
6. From the aforesaid facts it can be seen that after the death of the
original plaintiff, his estate was represented initially by his legal heirs and
subsequently this representation was continued by some of the legal heirs.
As held by the Honourable Supreme Court in Mithailal Dalsanagar Singh
and ors vs. Annabai Devram Kini and ors. 2003 (4) Mh.L.J 721 if the
legal heirs are brought on record at one stage of the proceedings the same
enures for the benefit of the entire proceedings. What is relevant is that the
estate of the deceased was always represented by some of his legal heirs in
various proceedings. In Sardar Amarjitsingh Kalra (Dead) by LRs and
ors. Vs Pramod Gupta (Smt) (Dead) by LRs. and ors.(2003) 3 SCC 272
the five Judge bench of the Honourable Supreme Court has held that the
Court should adopt liberal approach in the matter of condonation of delay
and an effort should be made to have adjudication on merits. This view has
946-J-AO-21-16 7/8
been followed in Bhag Mal alias Ram Bux and ors. vs. Munshi (Dead) by
LRs. and ors. (2007) 11 SCC 285. Thus considering the aforesaid facts
coupled with the aspect that the appeal which was dismissed in default on
19/10/2004 was ultimately restored on 31/08/2015 in proceedings that
were prosecuted by some of the legal heirs, I do not find in the facts of the
present case the delay in bringing on record the legal heirs of appellant No.2
did not deserve to be condoned.
7. As regards the failure on the part of the applicants to apply for
setting aside abatement as held in Mithailal Dalsanagar Singh (supra) this
aspect is not fatal and the application for condonation of delay can also be
treated as a request for setting aside the abatement. The other decisions
relied upon by learned counsel for the respondent are with regard to exercise
of discretion in condoning delay. In the facts of the present case when the
estate of the original plaintiff was always represented, ratio of those
decisions cannot be made applicable to the case in hand. I find that the
delay deserves to be condoned to enable adjudication on merits. Non-
prosecution of earlier application at Exhibit-8 is also not very relevant.
8. In view of aforesaid discussion, the order passed by the Appellate
Court below Exhibit-28 dated 02/02/2016 is quashed and set aside. Exhibit-
28 stands allowed. The appeal is accordingly allowed. The proceedings in
946-J-AO-21-16 8/8
appeal filed by the legal heirs have already been expedited. The appeal shall
be decided in accordance with law and on its own merits. There would be no
order as to costs.
JUDGE
Asmita
