Shri. Arun Naghnath Salunke vs Shri Pandharinath Shridhar ...
2021 Latest Caselaw 2626 Bom

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
Sneha N.
Chavan                                    WRIT PETITION NO. 7605 OF 2016
Digitally signed by
Sneha N. Chavan       Shri. Arun Naghnath Salunke                         .. Petitioner
Date: 2021.02.09
16:03:22 +0530              V/s.

                      Shri. Pandharinath Shridhar Mahamuni
                      (since deceased) through Legal heirs
                      a) Alka Pandharinath Mahamuni and Ors.              ..Respondents
                                                      ----
                      Mr. Rupesh Zade for the Petitioner.

                      Mr. Abhijit Kulkarni for the Respondent Nos. 1A to 1D.
                                                        ----
                                                 CORAM : C.V. BHADANG, J.

                                                 DATE     : 09th FEBRUARY, 2021

                                                   : JUDGMENT:

1. Rule. Rule made returnable forthwith. The learned counsel

for the contesting respondent Nos. 1A to 1D waives service. Heard

finally by consent of parties.

2. The challenge in this petition is to the order dated 08.02.2016

below application (Exhibit 9) and order dated 16.02.2016 (below

Exhibit 1) passed by the learned Additional District Judge at

Baramati in Civil Appeal No. 179 of 2013. By the impugned order

dated 08.02.2016, the District Judge has dismissed application

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Exhibit 9 filed by the petitioner seeking to bring on record the legal

representatives of the sole respondent. By the subsequent order

dated 16.02.2016, the appeal is disposed of as abated.

3. The brief facts are that late Pandharinath Mahamuni (original

plaintiff) had filed Regular Civil Suit No. 330 of 2011 against the

petitioner seeking eviction and possession on the ground of willful

default in the matter of payment of rent and bonafide requirement

along with recovery of arrears of rent. The learned Trial Court

decreed the suit vide Judgment and Decree dated 15.10.2013.

4. Feeling aggrieved, the petitioner challenged the same before

the learned District Judge in Civil Appeal No 179 of 2013. It

appears that on the next day of original plaintiff/ Pandharinath

Mahamuni obtaining the decree i.e. 16.10.2013, he expired. It

appears from the record that the legal representatives of

Pandharinath Mahamuni had filed caveat of which a notice was

served on the petitioner. Still the appeal came to be filed on

13.12.2013 against the sole respondent Pandharinath. Be that as it

may.

     Sneha Chavan                                             page 2 of 5
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5. Subsequently, the petitioner filed application Exhibit 9 for

bringing legal representatives of the sole respondent on record,

which came to be rejected, inter alia, on the ground that the

petitioner had failed to assign any reasons for not filing the

application within time. In short, the learned District Judge found

that the application was belated and there were no reasons

forthcoming for such delay.

6. I have heard the learned counsel for the petitioner and the

learned counsel for the respondents. Perused record.

7. The relevant circumstances are matters of record. The

eviction decree came to be passed on 15.10.2013. The sole

respondent/original plaintiff died on 16.10.2013. The appeal came

to be filed on 13.12.2013, while the application Exhibit 9 was filed

on 24.03.2014. It is true that there a certain amount of delay in

filing the application.

8. The learned Counsel for the respondents pointed out that the

original plaintiff had filed the suit in the year 2011 and a decree was

passed in his favour in October 2013. He pointed out that the

appeal was disposed of as abated and in a challenge to that order,

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there is a stay operating from the year 2016. He, therefore,

submitted that in the event, this Court is inclined to interfere, the

appeal may be expedited.

9. I have carefully considered the rival circumstances and the

submissions made. Although, as indicated earlier that there is a

certain amount of delay on the part of the petitioner, I find that in

the interest of justice and a fair opportunity to the petitioner and

further, having regard to the submissions made on behalf of the

respondents, the petition deserves to be allowed.

10. In the result, the following order is passed:

         a)          Petition is allowed.

         b)          The impugned orders dated 08.02.2016 (Exhibit 9) and

16.02.2016 (below Exhibit 1) are hereby set aside.

         c)          Exhibit 9 is allowed as prayed.

         d)          Necessary amendments in the appeal memo shall be

carried out within two weeks from today.

         e)          The parties to remain present before the learned District

Judge on 22.02.2021.

         f)          The learned District Judge shall proceed to hear and

decide the appeal as expeditiously as possible.

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       g)          Rule is made absolute in the aforesaid terms with no

order as to costs.



                                         C.V. BHADANG, J.




    Sneha Chavan                                                 page 5 of 5