Bombay High Court
Ganesh Shivnath Mande vs Jagannath Dhondiba Mande on 1 September, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
930 CIVIL APPLICATION NO.9077/2021
IN
SECOND APPEAL NO.249 OF 1997
WITH CA/2859/1997 IN SA/249/1997
GANESH SHIVNATH MANDE & ORS.
VERSUS
JAGANNATH DHONDIBA MANDE
...
Advocate for Appellants : Shri Patil Milind;
Shri D R Irale Patil, Adv. For Resp.Nos.4 & 6.;
Resp.Nos. 2, 3 and 5 are served;
Mr. Ashutosh S.Kulkarni, Adv. h/for Mr. Deshmukh Vijay
Vasantrao & Mr. S.K.Rahane, Adv.For Resp Nos. 7 & 8;
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 1st September, 2021.
PER COURT :-
1. Present application has been filed to bring the fact on
record that original plaintiffs, i.e. present appellants have become
major by passage of time and they are no longer required to be
represented by the next friend. Further, their mother, who was
their next friend, was not made party in her independent
capacity. But then now she would be added as an appellant in her
independent capacity. So also the fact of death of grand-mother
of the plaintiffs viz. Yashodabai Wd/o Jagannath Mande, who
expired during pendency of the appeal on 16.12.2016 and,
therefore, no necessity to bring her on record. Her interest is
represented by the parties to the litigation.
::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 00:06:02 :::
(2)
2. Learned Advocate Mr.Kulkarni representing for
Respondent Nos.7 and 8, submits that since the fact about
attaining majority of the plaintiffs cannot be denied and also the
fact of death cannot be challenged, he has no serious objection.
However, he pointed out that the first Appellate Court was
required to interfere with the decree that was passed by the
learned Trial Court only on the ground that necessary parties
were not included. They were grand-mother Yashodabai and
mother of the plaintiffs in her independent capacity. This could
have been done much much earlier in this appeal itself and this
Court, while admitting the Second Appeal, had formulated only
one susbtantial question of law which was relating to the
necessary party.
3. At the time when the suit was filed, the plaintiffs were
aged 7, 4, 11 and 9 respectively. The suit was filed on 14.6.1991
and it was decided on 30 th November, 1994. Regular Civil Appeal
No.20/1995 was filed in the year 1995 and it was decided in
1997. In Second Appeal filed in the year 1997, though appellant
No.1 was shown as aged 19; yet it is stated that he is through
his guardian mother. Age of appellant Nos. 2, 3 and 4 has been
shown as 10, 7 ½ and 15 respectively.
4. It appears that calculation of age at the time of filing
of the Second Appeal was wrong. So also, it appears that office
::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 00:06:02 :::
(3)
of this Court has not raised any office objection in respect of the
same. In any way, now, age of the original plaintiffs 1 to 4 is 37,
34, 41 and 39 respectively. Immediately after all had attained
the majority, there was no change in the title. This could have
been avoided or such situation could not have been waited. It
requires diligence on the part of the parties as well as Advocate,
who is drafting. From the present age of the applicants, it can be
definitely considered that the change, which they want to bring
on record today, could have been brought years ago.
5. Secondly, as regards the fact of death of Yashodabai
is concerned, immediately after pronouncement of the judgment
of the first Appellate Court and filing of the Second Appeal, the
said step could have been taken to add her party and then the
matter could have proceeded with and even at that time itself,
instead of framing substantial question of law, the matter could
have been disposed of at the admission stage itself.
6. The present appeal came to be admitted on 29 th
September, 2000 and the present application has been filed after
21 years. Respondent Nos.7 and 8 are the main contesting
parties and, therefore, inconvenience that would be caused to
Respondent Nos.7 and 8, deserves to be compensated. Hence,
following order, -
::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 00:06:02 :::
(4)
ORDER
i. The application stands allowed and
disposed of.
ii. The fact of attainmemnt of majority of the
original plaintifs is taken on record. Their mother,
who was up till now shown as guardian, be taken on
record in her independent capacity. So also the fact of
death of grand-mother Yashodabai Jagannath Mande
is taken and the pursis to that effect filed on record is
taken on record.
iii. The title of the Second Appeal be
amended accordingly.
iv. The applicants to deposit costs of Rs.
50,000/- within a period of one month from today.
After deposit of the amount of costs, it be distributed
equally to Respondent Nos. 7 and 8.
v. S.O. to 4.10.2021.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
