Bombay High Court
Balwanta Raoji Thorat (Died) Thr ... vs The Executive Engineer, ... on 10 February, 2021
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.7633 OF 2020
IN
FIRST APPEAL NO.195 OF 2018
Eknath Chagan Shinde (Died)
Through L.Rs.
1-A) Parvatabai Eknath Shinde
and others.
..APPLICANTS
-VERSUS-
The Collector, Aurangabad
and others.
..RESPONDENTS
WITH
CIVIL APPLICATION NO.8064 OF 2020
IN
FIRST APPEAL NO.194 OF 2018
Balwanta Raoji Thorat (Died)
Through L.Rs.
1-A) Kachru Balwanta Thorat
..APPLICANT
-VERSUS-
The Executive Engineer,
N.M.C. Division, Vaijapur
and others.
..RESPONDENTS
...
Mr.A.M. Hajare, Advocate for applicants
Mr.A.A. Jagatkar, Advocate for the respondent-
State.
...
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CORAM : V.L. ACHLIYA, J.
DATE : 10.02.2021
ORAL ORDER :
. The applicants have preferred these
applications to bring their names on record as
legal representatives of the deceased respondent
no.1 in respective appeals by condoning the delay.
2. In brief, it is the contention of learned
counsel for the applicants that they are the legal
representatives of the deceased respondent no.1 in
respective appeals preferred by the appellant -
acquiring body. The Reference Court enhanced the
compensation vide judgment and awards dated
27.10.2020 and 30.10.2020 passed in respective
References made by the deceased respondent No.1.
After period of more than six years of the
judgment and awards passed by the Reference Court,
the acquiring body preferred appeals challenging
the said awards along with applications seeking
condonation of delay. Pursuant to notice issued to
respondent no.1 in said application, the bailiff
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reported that the respondent no.1 in both the
appeals had died on 16.01.2012 and 12.09.2011
respectively. He has also annexed the death
certificates in respect of respondent no.1 in both
the appeals. After receipt of reports, the appeals
were listed before the Court on 03.10.2017. The
Advocate representing the appellant - acquiring
body sought time to bring legal representatives of
the deceased respondents on record. In order to
take steps to bring the legal representatives of
the deceased on record, the appeals were adjourned
and posted on 6th November, 2017. On 28th November,
2017, the applicants appeared and filed
applications through their Advocate to bring their
names on record as legal representatives of
respondent no.1 in respective appeals, still the
appellant has not taken any steps to bring legal
representatives on record. However, the delay was
condoned though the Respondent No.1 in respective
appeals were dead. Even after delay was condoned
and the appeals were registered, the appellant -
acquiring body has not taken any steps to bring
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legal representatives of the deceased Respondent
no.1 on record. Appeals were placed before the
Lok-Adalat held on 14.07.2018. The appellant -
acquiring body withdrawn the appeals. Accordingly,
the order as to disposal of appeals as withdrawn
passed on 14.07.2018. It is submitted that the
appellant have deposited the amount in terms of
award passed by the Reference Court pursuant to
the conditional order granting stay passed in both
the appeals. In absence of their names brought on
record as legal representatives of the deceased
Respondent No.1, they are not entitled to withdraw
the amount. In order to overcome the situation,
they have preferred these applications.
3. Learned counsel for the
applicants submits that based upon identical
facts, this Court has entertained such
applications and allowed the legal representatives
of the deceased respondent to bring their names on
record though the appeals were disposed of. In
this context, learned counsel has referred the
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order dated 14.06.2019 passed by this Court
(Coram : Smt.Vibha Kankanwadi, J) in Civil
Application No.6487/2019 filed in First Appeal
No.198/2018 and the order dated 29.11.2019 passed
by this Court (Coram : Mangesh S. Patil, J) in
Civil Application No.4965/2019 filed in First
appeal No.793/2018.
4. Since it was noticed that invariably the
applications claiming similar reliefs are filed by
the legal representatives of the deceased
respondents in disposed of appeals and the
applications are processed without scrutinizing
the same, the Registrar (Judicial) was requested
to examine the maintainability of such
applications and suggest the remedial measures to
overcome such situation.
5. Pursuant to the order dated 11.12.2020
passed by this Court, the Registrar (Judicial) has
examined the record and proceedings of both the
cases and submitted detailed report. The Registrar
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(Judicial) has observed in report as under :-
"In this background, I submit with
utmost respect that having considered
ambit and scope of Order XXII of the Code
of Civil Procedure, the present Civil
Applications filed by the legal heirs to
substitute them in place of original
respondent by condoning the delay are
beyond the scope and ambit of Order XXII
of the Code of Civil Procedure. It is
pertinent to note that as on today
appeals are not pending. The appellants
are not moving these applications to
bring on record legal heirs by restoring
the appeals to rectify the error on their
part. These Civil Applications are by
legal heirs of original respondents.
Therefore, these Civil Applications even
considered under Order 1 Rule 10 of Order
XXII 10, the same are not tenable, as
appeals are no more pending. It is open
for legal heirs of the defendant or
respondent to approach the Court to
substitute them in place of their
predecessor-in-title. However, this
remedy is open when suit or appeal is
pending.
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I am further to state that it is
also not a case to permit correction of
errors under Section 21(1) proviso of the
Limitation Act. It permits the
substitution or adding new plaintiff or
defendant during pendency of proceeding,
where the Court is satisfied the omission
to include a new plaintiff or defendant
was due to a mistake made in good faith.
This remedy is open to the plaintiff or
appellant only, if they have impleaded
any wrong person as a defendant or
respondent in good faith.
To sum up, in view of aforesaid
factual as well as legal position, the
present Civil Applications are beyond the
purview of Order 22 of the Code of Civil
Procedure.
REMEDIAL MEASURES
The Hon'ble Lordship was pleased to
direct the undersigned to state remedial
measure to avoid such complication. I,
first, express regretness for
inconvenience caused to the Hon'ble
Court. The undersigned has already issued
directions to the concerned branch to
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ascertain whether main appeal/petition is
pending, whichever they receive
application to bring on record legal
heirs. However, the concerned Assistant
Section Officer reported vide his report
that due to oversight he did not check
the maintainability of Civil Applications
in the light of Order XXII of the Code of
Civil Procedure. He has expressed apology
(Flag-G). I further submit with utmost
respect that I have again issued
directions to all concern to take utmost
care while examining the Civil
Applications to bring on record legal
heirs. I am further to state that
henceforth utmost care will be taken even
while placing the matter before the Lok
Adalat and it will be ascertained whether
parties are alive at the time of passing
the Award as well as their free consent."
6. The enabling provisions contained in
Order XXII Rule 4 and Rule 11 of the Code of Civil
Procedure providing for bringing the legal
representatives of the defendants or sole
defendant in suit or the respondents or sole
respondent in appeal reads as under :-
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"Order XXII Rule 4 - Procedure in case of death of one
of several defendants or of sole defendant-
(1) Where one of two or more defendants dies and the
right to sue does not survive against the surviving
defendant or defendants alone, or a sole defendant or
sole surviving defendant dies and the right to sue
survives, the Court, on an application made in that
behalf, shall cause the legal representative of the
deceased defendant to be made a party and shall proceed
with the suit.
(2) Any person so made a party may make any defence
appropriate to his character as legal representative of
the deceased defendant.
(3) Where within the time limited by law no application
is made under sub-rule (1), the suit shall abate as
against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed to
file a written statement or who, having filed it, has
failed to appear and contest the suit at the hearing;
and judgment may, in such case, be pronounced against
the said defendant notwithstanding the death of such
defendant and shall have the same force and effect as
if it has been pronounced before death took place.
(5)Where-
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(a) the plaintiff was ignorant of the death of a
defendant, and could not, for that reason, make an
application for the substitution of the legal
representative of the defendant under this rule within
the period specified in the Limitation Act, 1963 (36 of
1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the
period specified therefor in the Limitation Act, 1963
(36 of 1963), for setting aside the abatement and also
for the admission of that application under section 5
of that Act on the ground that he had, by reason of
such ignorance, sufficient cause for not making the
application within the period specified in the said
Act,
the Court shall, in considering the application
under the said section 5, have due regard to the fact
of such ignorance, if proved."
Order XII Rule 11 - Application of Order to appeals-
In the application of this Order to appeals, so far as
may be, the word "plaintiff" shall be held to include
an appellant, the word "defendant" a respondent, and
the word "suit" an appeal."
7. Thus, plain reading of above-quotted
provisions spell out that the application to bring
legal representatives of the deceased defendant or
defendants in suit or respondent/respondents in
appeal can be invoked during pendency of suit or
appeal, as the case may be. There is no enabling
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provision empowering the Courts to entertain such
application after final decision in a suit or
appeal, as the case may be. So also the exercise
to bring the legal representatives of the deceased
defendant or respondent necessarily to be
undertaken by the plaintiff or the appellant in
suit. In that view, the applications filed by the
applicants to bring their names on record as legal
representatives of the deceased respondent no.1
after final disposal of appeals can not be
entertained. In that view, the applications filed
by the applicants are misconceived and not
maintainable in law.
8. In view of the facts emerged from the
record of the present appeals and other cases came
up for hearing, it is necessary to observe that
for referring the case for consideration before
the Lok-Adalat the existence of "dispute" between
the parties is a sine qua non. In absence of any
dispute between the parties, no case expected to
be referred for consideration of Lok-Adalat.
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If the plaintiff or appellant seeks withdrawal of
the appeal then such matters cannot be processed
and placed before the Lok-Adalat for passing the
formal order of disposal of appeals as withdrawn.
9. In this context, it is useful to refer
Section 20 of the Legal Services Authorities Act,
1987 which provides for cognizance of cases by
Lok-Adalat. It necessarily requires existence of
dispute between the parties which needs to be
resolved through intervention of Panel members.
Proviso to sub-section (1) and sub-section(2) of
Section 20 expressly provide that no case shall be
referred to Lok-Adalat for settlement except after
giving reasonable opportunity of being heard to
the other party. In that view, the cases in which
no dispute exist between parties can not be
referred for settlement before Lok-Adalat.
Therefore, the practice of placing the matters
before Lok-Adalat, where the parties are not
served or reported to be dead is contrary to
statutory provisions contained U/Sec. 20 of Legal
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Services Authorities Act. It is also important to
take note that in order to regulate the procedure
for conduct and organizing the Lok-Adalats, the
regulations have been framed. The National Legal
Services Authority (Lok Adalats) Regulations, 2009
(hereinafter referred to as "The said
Regulations") provides for procedure for
organizing the Lok-Adalats. The regulation 5 of
the said Regulations mandatorily provides notice
to every party whose case is referred to
Lok-Adalats to be given in advance so that the
party concerned prepare himself to appear before
the Lok-Adalat. The notice can be dispensed with
if the order referring the case passed in presence
of the parties to the proceedings. The procedure
for hearing of the case necessarily requires the
existence of certain dispute amongst the parties
which needs to be resolved with the assistance of
expert members of the Panel. The purpose of
appointment of expert Panel is to facilitate the
parties to arrive at just settlement. However, it
is observed that the cases are processed and
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placed before Lok-Adalat without following the
procedure prescribed under the law. The cases in
which the parties are not served or reported to be
dead still processed and placed before the Lok-
Adalats. So also the cases in which no dispute
exists and required to be resolved through
intervention of the Lok-Adalat are also placed
before the Lok-Adalat. It will not be out of place
to observe that the cases in which the acquiring
body, insurance company as well as private
individual seeks to withdraw the proceedings on
account of out of Court settlement or policy
decision of the Government or statutory body then
such cases are not expected to be placed before
Lok-Adalat just for the sake of disposal. It is
also expected that valuable time of the expert
members of the Panel be utilized for resolution of
real dispute amongst the parties.
10. In view of the conclusion which I have
reached that the applications filed are not
maintainable, the applications are dismissed as
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not maintainable.
11. Since the appeals are disposed of and the
amount has been deposited in terms of the
conditional order passed by this Court to stay the
execution of Award under challenge in respective
appeals, it is necessary to transfer the amount to
the Reference Court to be treated as deposit made
towards satisfaction of award passed by Reference
Court in respective cases. Accordingly, the amount
be transferred to concerned Court. The applicants
are granted liberty to make appropriate
applications before the Reference Court or
Executing Court, as the case may be, for
withdrawal of amount. In case such applications
are made, the Reference Court or Executing Court,
as the case may be, are directed to decide the
same on its own merit. If the applicants satisfy
the Court that they are legal representatives of
the deceased claimants and entitled to receive the
compensation amount then the appropriate orders be
passed as to disbursal of amount.
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12. The applications are disposed of with
observations made as above.
[V.L. ACHLIYA]
JUDGE
SGA
