Bombay High Court

1. Nilofar Ajij Tamboli Deceased ... vs Mahananda Ramling Parandkar And ... on 1 December, 2021

Bench: V. V. Kankanwadi

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                         CIVIL APPLICATION NO.1523 OF 2021
                                 IN SAST/24839/2019


SMT. NILOFAR AJIJ TAMBOLI, DECEASED, THROUGH LRS. PARAVIN YUNUS
                                   TAMBOLI AND OTHERS
                                        VERSUS
           SMT. MAHANANDA RAMLING PARANDKAR AND OTHERS
                                           ...
                       Mr. S.S. Kulkarni, Advocate for appellants
                  Mr. D.A. Naik, Advocate for the respondent No.3
                                           ...

                                      CORAM :    SMT. VIBHA KANKANWADI, J.
                                      RESERVED ON :    07th OCTOBER, 2021
                                      PRONOUNCED ON : 01st DECEMBER, 2021


ORDER :

1 Present application has been filed for getting delay of 1602 days

condoned for taking the legal representatives of applicant No.1 on record.

2 Applicants are the original appellants-original plaintiffs, who had

filed Regular Civil Suit No.274/2001 before learned Civil Judge Senior

Division, Kopargaon, Dist. Ahmednagar for specific performance of the

contract and other reliefs. The said suit came to be dismissed on 09.01.2012.

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They challenged the said Judgment and Decree by filing Regular Civil Appeal

No.25/2012. The said appeal came to be dismissed by learned District

Judge-1, Kopargaon, Dist. Ahmednagar and also the cross-objection, which

was filed by the original defendants, came to be allowed, which was in

respect of same findings which had gone against them. The applicants have

further contended that they want to challenge the said Judgment and Decree

passed by the First Appellate Court, however, in the meantime, when the

matter was before the First Appellate Court itself, the appellant No.1 had

expired on 19.12.2014 at Shrirampur. In fact, initially the applicant No.2-

original plaintiff No.2/appellant No.2 was attending the Appellate Court,

however, because of his personal commitments it was not possible for him to

attend thereafter. He, therefore, instructed his employee to attend the appeal

for hearing at Kopargaon. Since he had not attended the appeal and

thereafter there was no communication about the death of appellant No.1 to

the Advocate who was representing them, the legal heirs of appellant No.1

were not brought on record. The delay in filing the present application for

bringing the legal heirs of applicant No.1/appellant No.1/plaintiff No.1 is

neither intentional nor deliberate. The employee of the applicant No.2 who

was attending First Appellate Court, from time to time, was not having legal

knowledge and he had not communicated death of appellant No.1 to the

Advocate. Under said circumstance, the appeal was heard and finally

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decided. The plaintiff No.1 has left the applicant Nos.1-A to 1-G and

applicant No.2 as heir and, therefore, the applicant Nos.1-A to 1-G are

required to be brought on record. The delay deserves to be condoned.

Hence, the application has been filed.

3 The application has been strongly opposed by respondent No.3

by filing affidavit-in-reply. It has been contended that the reasons given for

the delay are neither reasonable nor sufficient to condone the delay.

Applicant No.2 himself was on record and he had the knowledge about death

of his mother. Still the legal representatives were not brought on record. In

fact, the Regular Civil Appeal No.25/2012 itself was abated and could not

have proceeded further. In view of the said fact even the Second Appeal

would also abate. Details have not been given as to how the present

applicants are the legal heirs of deceased appellant No.1. In fact, deceased

was having another land Gat No.227/1/2 situated in Puntamba village, Tq.

Rahata, Dist. Ahmednagar. After the demise of appellant No.1, the present

applicant No.2 filed application before Talathi on 09.06.2015 for bringing the

heirs on record and accordingly name of present applicant No.2 and

applicant No.1/A has been mutated vide Mutation Entry No.21750. When

the fact was known to the applicants and yet they had not taken any steps,

they deserve no sympathy and the application as well as Second Appeal

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deserves to be dismissed with heavy costs.

4 Heard learned Advocate Mr. S.S. Kulkarni for applicants and

learned Advocate Mr. D.A. Naik for the respondent No.3.

5 Apart from supporting his contentions in the application the

learned Advocate for the applicants has relied on the decision in Perumon

Bhagvathy Devaswom vs. Bhargavi Amma (Dead) by LRs. and others, 2009

(2) Mh.L.J. 1, wherein the principles applicable in considering applications

for setting aside abatement were summarized as follows.

(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased Respondent when the appeal abates, it will not punish an Appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits,

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rather than terminate the appeal on the ground of abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.

(v) Want of 'diligence' or 'inaction' can be attributed to an Appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the Appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an Appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting Respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.

Further, in this case it has been held that -

Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the

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abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party--LRs of the deceased--On account of the abatement) :

(i) The Respondent had died during the period when the appeal had been pending without any hearing dates being fixed;

(ii) Neither the counsel for the deceased Respondent nor the Legal Representatives of the deceased Respondent had reported the death of the Respondent to the court and the court has not given notice of such death to the Appellant.

(iii) The Appellant avers that he was unaware of the death of the Respondent and there is no material to doubt or contradict his claim.

5.1 Further reliance has been placed on Esha Bhattacharjee vs.

Managing Committee of Raghunathpur Nafar Academy and others, (2013) 12

SCC 649, wherein the principles for dealing with the application for

condonation of delay were laid down as follows :

(i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation.

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    (iii)    Substantial justice being paramount and pivotal the technical

considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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    (x)      If the explanation offered is concocted or the grounds urged in

the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to fact such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles the Supreme Court may add some more guidelines taking note of the present day scenario. They are :

(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.


    (c)      Though no precise formula can be laid down regard being had





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to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non- challant manner requires to be curbed, of course, within legal parameters.

5.2 Further reliance has been placed on the decision in Banwari Lal

and others vs. Balbir Singh, (2016) 1 SCC 607, wherein it was reported that

the provisions contained in Order 22 of CPC are not to be construed as a rigid

matter of principle but must ever be viewed as flexible tool of convenience in

the administration of justice.

6 Per contra, the learned Advocate appearing for the respondent

No.3 after supporting the contents of affidavit-in-reply submitted that

applicant No.2 is a medical practitioner and, therefore, he cannot take the

defence that he had no legal knowledge. He had applied for mutation of his

name in respect of another property after death of his mother. He had the

knowledge about the pendency of the appeal before the First Appellate Court;

yet, no steps were taken by him. It is sheer negligence on his part and in

absence of bringing the legal representatives of the appellant No.1 on record,

in fact, the appeal as a whole ought to have been disposed of as abated.

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However, that information itself has been withheld by the applicant No.2. He

cannot take advantage of his own wrong. The application is not bona fide

and the application also cannot be considered as application under Order 1

Rule 10 of the Code of Civil Procedure.

7 At the outset, it is to be noted that it has not been mentioned by

the applicants as to under which provisions of law this application has been

filed. But when applicant No.2 who was a party to the proceedings before

the Courts below is also an applicant here, the application cannot be

considered under Order 1 Rule 10 of the Code of Civil Procedure. It has to be

considered under Order 22 Rule 3 of the Code of Civil Procedure, which

prescribes for procedure, in case of death of one of several plaintiffs or of sole

plaintiff dies and the right to sue survives, as it is canvassed by the applicants

now that they are the necessary parties. At the outset, it is to be noted that in

the application they have not at all clarified as to how the right to sue

survives against applicant Nos.1-A to 1-G. In specific terms they have not

given the relationship of these persons with deceased applicant No.1. Merely

by making a statement that they are the legal heirs, they cannot become

necessary parties. Another circumstance, that is, required to be considered is

that applicant No.2 was already on record and in that event whether the right

to sue would have survived for him for proceeding the matter further.

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Perusal of the Judgments of both the Courts below would show that the

plaintiffs had come with a case that the suit land was originally owned by

one Sonabai Jangam, who was the maternal aunt of defendant No.1.

Defendant No.1 received the suit land from Sonabai under Will dated

18.04.1991. Defendant No.1 agreed to sell the suit land to one Dr. Ajij, who

was the husband of plaintiff No.1 and the father of plaintiff No.2 on

26.04.1991 for a consideration of Rs.70,000/-, and at that time the earnest

amount of Rs.10,000/- was paid. Dr. Ajij expired on 02.12.1991. It is the

contention of the plaintiffs that their predecessor was put in possession of

suit property by defendant No.1 on the date of agreement and on the date of

agreement the plaintiffs were put in possession of suit land. It appears that it

was also tried to be canvassed that Dr. Ajij was tenant of the suit land since

30-40 years prior to the agreement to sell and, therefore, after he and his

death plaintiffs are paying rent to Sonabai as well as defendant No.1. It is

contended that after death of Dr. Ajij, defendant No.1 executed agreement in

favour of the plaintiffs on 26.09.1999 and according to the plaintiffs, they

have paid the excess consideration. Inspite of that, instead of executing sale

deed, defendant No.1 filed Regular Civil Suit No.658/2000 against them for

injunction and executed sale deed on 20.02.2001 in favour of defendant

No.3. It let to the plaintiffs to file suit for specific performance of the

contract and the declaration in respect of the sale deeds. As aforesaid, the

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Trial Court dismissed the suit and the appeal filed by the original plaintiffs

was dismissed by the First Appellate Court. The cross-objection in respect of

findings was allowed, which was in respect of possession over the suit land.

8 Taking into consideration the case of the plaintiffs as it was

before the Trial Court it can be seen that though the plaintiffs were claiming

specific performance of the contract also on the basis of the agreement to sell

dated 26.04.1991 which was stated to be executed by defendant No.1 in

favour of Dr. Ajij, it is to be noted that all the legal representatives of Dr. Ajij

were not party to the suit. Only the wife and one son were the party plaintiff.

If we consider the prayer clause in the plaint, it is not specific as to in respect

of which agreement to sell the specific performance has been prayed. At the

costs of repetition, it can be said that the plaintiffs were initially saying that

the agreement to sell was in favour of Dr. Ajij, their predecessor and

thereafter there were three parts of the agreement allegedly executed by

defendant No.1 on different dates i.e. 10.12.1993, 17.06.1996 and

29.06.1999 and, therefore, a specific point was framed by the First Appellate

Court as follows.

"2 Whether the plaintiffs prove that defendant No.1 executed the agreement in three parts and on different dates i.e. on 10.12.1993, 17.06.1996 and 29.06.1999 in continuation of

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agreement Exhibit 199 and proved payments thereunder towards parts of the consideration amount from time to time ?"

The finding has been given by the First Appellate Court in the

negative. The first and the foremost question, therefore, would be - Whether

only two heirs of Dr. Ajij can ask for specific performance of the contract as

continuation of agreement Exh.1999 dated 26/28.04.1991 ? Even if for the

sake of argument it is accepted that only the plaintiffs were entitled to file the

suit; yet, now it is required to be seen, as to whether in the appeal whether

the right to sue would have survived only against plaintiff No.2/appellant

No.2.

9 Applicant No.2 has come with a case that initially he attended

the civil appeal on the dates given, however, later on he engaged his

employee, who was attending the dates but after demise of appellant No.1 no

communication about date of her death was informed to the Advocate who

was representing them. At the first place, applicant No.2 has not disclosed

the name of that employee, to whom he had deputed, nor a supporting

affidavit has been filed. It is to be noted that appellant No.1 had expired on

19.12.2014 and the decision of the First Appellate Court dated 26.06.2019.

That means, after death of appellant No.1 also the matter was there for about

five years. It is hard to believe that in the said period of five years the

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applicant No.2 would not have met his Advocate for any reason. He is not

claiming ignorance of law, but then he is saying that his employee had no

legal knowledge. When he had the knowledge that the fact of death of the

appellant will have to be informed to the Advocate because in respect of

another land he had taken up steps to get his name mutated, then definitely

he knows the consequences. Even if he could have asked his employee to

pass on the information about death of his mother, the Advocate would have

made communication to him as to what could be the further reference. In

respect of all these things the application is silent.

10 Therefore, it is very much clear that inspite of having knowledge

that the legal heirs are required to be brought on record, no steps were taken

by the applicant No.2/appellant No.2/plaintiff No.2 within reasonable

period. Period of 1602 days is huge and inordinate and as aforesaid, the

explanation that has been given is not sufficient, much less reasonable.

11 Again reverting to the fact that both the plaintiffs had claimed

specific performance of the contract, which was of agreement to sell dated

26/28.04.1991 (Exh.199) and in continuation thereof 10.12.1993,

17.06.1996 and 29.06.1999, it can be said that it was the prayer which was

joint and several, in the event of death of original plaintiff No.1 the right to

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sue survived jointly with her legal representatives including plaintiff No.2,

however, since no steps were taken the appeal i.e. Regular Civil Appeal

No.25/2012 had abated as a whole after the statutory period had expired

after the death of appellant No.1 therein. The decision in Smt. Sarojdevi and

others. Vs. Charushil and others by the Division Bench of this Court reported

in AIR 1986 BOMBAY 315 would be helpful in this case. It has been

observed -

"Order 22, R. 1 and R. 3(2) govern the case where there is only one plaintiff. The case of more plaintiffs than one is covered by rules 2 and 3(1) of Order 22. Rule 2 provides that the proceedings in a suit with the death of one of the plaintiffs the right to sue must survive in favour of the surviving plaintiffs in which case no legal representatives of the deceased plaintiff will be brought on record. Under rule 3(1) where a right to sue does not survive in favour of the surviving plaintiffs the legal representatives of the deceased plaintiff have to be brought on record and that too on the application made in that behalf. It would, therefore, be clear that all depends on the right to sue surviving in favour of the surviving plaintiffs on the death of, one of the plaintiffs. If it does not and the legal representatives of the deceased-plaintiff are not brought on record, either as plaintiffs or defendants, there is no other go for the Court than to throw the suit away as having abated in its entirety."

Further, it is observed that -

In a suit for specific performance of an agreement, it is not necessary

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that all the persons agreeing to the contract must be joined as plaintiff, although it is essential that all the parties to the contract should be before the Court either as plaintiff or defendant. Therefore, in the instant case it was for the surviving plaintiffs to have brought on record the legal representatives of the deceased-plaintiff at least as the defendants, although according to the plaintiffs they had no interest left in the property.

...............

One has, therefore, necessarily to go into substantive law to find out whether the right to sue survives in the case of joint and indivisible property. In view of S. 37 of the Contract Act, all the plaintiffs including the legal representatives of the deceased plaintiff who are co-promisors must be before the Court and offer to perform the obligations under the contract under the substantive law. S. 45 of the Contract Act is also relevant and it follows from S. 45 that when four persons are co-contractors and file a suit jointly for specific performance of a contract and one of them dies during the pendency of the suit, the right to sue survives jointly with the surviving plaintiffs and the legal representatives of the deceased-plaintiff. In other words all those in whom the right to sue survives jointly become necessary parties to the suit.

A suit for specific performance of a contract which is joint and indivisible abates in its entirety when one of the plaintiffs, who is a party to the joint, indivisible contract dies and his legal representatives are not brought on record within specified time.

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12              Under the said circumstance and the ratio laid down, which was

also based on the earlier decision of this Court in Pandurang Sadashiv Patil

vs. Pandurang Chimnaji Patil, 1983 Mh.L.J. 460, where also there was suit for

specific performance of the contract and alternative prayer of refund of

earnest money was filed against two brothers and during the pendency of the

suit one of the two brothers had died, no steps were taken to bring the legal

representatives on record within time. It was held that the entire suit would

abate only in respect of claim for specific performance, also for refund of

earnest money. Here, it is to be noted that in Pandurang Sadashiv Patil

(supra) it was the defendant, who had expired, however, in Sarojdevi (supra)

further observation has been made that those observations in Pandurang

Sadashiv Patil (supra) would apply with equal force, where one of the four

plaintiffs had died. The interest of four plaintiffs in the instant case and in

the subject-matter of the suit being joint, indivisible and undefined, the suit

has to abate in its entirety on its failure to bring on record the legal

representatives of the deceased within time prescribed by law. This ratio

equally applies to the First Appeal which is a continuation of the suit for

many practical reasons.