Bombay High Court
Sarjerao S/O Bajirao Raut (Dead) ... vs Keshaorao Bajirao Raut & Ors on 21 August, 2021
Bench: S. M. Modak
1 SA 72.2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION (CAS) 1004 OF 2010
WITH
CIVIL APPLICATION (CAS) 1005 OF 2010
WITH
CIVIL APPLICATION (CAS) 1006 OF 2010
WITH
CIVIL APPLICATION (CAS) 1048 OF 2018
IN
SECOND APPEAL NO. 72 OF 2010
Sarjerao Bajirao Raut
Vs.
Keshaorao S/o Bajirao Raut (dead) through L.R's Sau Vimal W/o Janrao Chopade & ors.
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Shri V.G. Bhamburkar, Adv for the appellant.
Shri M.R. Joharapurkar, Adv for the respondent Nos.7, 8 & 9-a.
CORAM : S.M. MODAK, J.
DATE : 21st AUGUST, 2021.
1. As directed on the last date, today I have heard the
arguments of learned Advocate Shri Bhamburkar for
respondent No.3-d/proposed appellant and learned Advocate
Shri M.R. Joharapurkar for respondent Nos.7, 8 and 9-a.
2. Civil Application (CAS) No. 1004/2010 is an
application for condonation of delay of 21 days for bringing
legal representatives of deceased/appellant.
Whereas Civil Application (CAS) No. 1005/2010 is
for grant of permission to bring his legal representatives on
record. Whereas Civil Application (CAS) No.1006/2010 is for
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2 SA 72.2010
transposition respondent No.3-d as appellant on the basis of
Will-Deed executed by the deceased/appellant. Whereas Civil
Application (CAS) No.1048/2018 is for transposition not as a
legatee but as a legal representative being a nephew.
Whereas Civil Application no. 1006/2010 was
already argued and the issue about execution of a Will was
decided by the trial Court and certified by the First Appellate
Court. This Court as per the order dated 29.06.2018 was
pleased to confirm the findings on the point of Will. The
proposed appellant could not prove the Will. This Court as per
the said order granted liberty to the proposed appellant to take
appropriate steps as permissible.
3. It seems that Civil Application (CAS) No.1006/2010
remained to be disposed of. It means that Civil Application
(CAS) No.1048/2018 was filed in pursuance to the liberty
granted on 29.06.2018. During the argument, learned
Advocate Shri M.R. Joharapurkar vehemently argued about
maintainability of that application in the light of the provisions
of Order XXIII Rule 1-A of the Code of Civil Procedure,1908.
According to him there is neither withdrawal nor
abandonment. He also relied the Judgment in the case of
Maooli Land Developers and others In the matter between
Kashibai Waman Patil and others Vs. Taukir Ahmed
Mohammed Haniff Khan and others reported in 2015(3)
Bom.C.R. 466.
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3 SA 72.2010
4. Learned Advocate Shri Bhamburkar expressed
desire to withdraw the Civil Application (CAS) No.1048/2018
and asked for time to file an application under the relevant
Rule of order 22 of the Code of Civil Procedure. While going
through the record, Civil Application (CAS) No.1004/2010 and
Civil Application (CAS) No.1005/2010 were noticed. Though
there is a prayer for bringing the name of respondent No.3-d
and for condonation of delay, the foundation of those
applications is the Will-Deed (relationship is described as
legatee). Those two applications could have been considered as
an application filed by respondent No.3-d as his nephew.
However it cannot be. Because the foundation of those
application is legatee. At the same time, the Civil Application
(CAS) No.1048/2018 could have been considered under Order
22 but unfortunately it could not be considered because there
is a prayer for transposition.
5. After hearing them and after going through the
record this Court does not prevent itself from saying that even
every litigation is having its own fate.
6. When the proposed appellant does not want to
prosecute Civil Application (CAS) No.1004/2010 and Civil
Application (CAS) No.1005/2010, this Court cannot compel
him to prosecute those applications. In view of that, the
following order is passed.
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4 SA 72.2010
ORDER
1. Civil Application (CAS) No.1004/2010 and
Civil Application (CAS) No. 1005/2010 are disposed
of as not pressed.
2. Civil Application (CAS) No.1006/2010 is disposed
of in view of the observations in the order dated
29.06.2018.
3. The respondent No.3-d is granted one week's time
to file an application to seek permission to bring his
name on record as a nephew of deceased/appellant.
4. This Court can have a hope that the proposed
appellant will also file necessary connected
applications.
5. Time is granted without expressing any comment
on merit of those proposed applications.
6. If the proposed appellant will not file those
applications within a week, Civil Application (CAS)
No.1048/2018 stands disposed of without reference
to the Court. In such an eventuality the appeal will
also stand abated.
Matter be kept on 31.08.2021.
JUDGE
C.L.Dhakate
