Bombay High Court
Ram Shankarrao Nagargoje Died, ... vs Vaijnath Shankarrao Nagargoje on 21 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.8981 OF 2021
IN SA/572/1999
RAM SHANKARRAO NAGARGOJE, DIED, LRS, LIMBABAI, DIED, LRS,
VITTHAL AND ANOTHER
VERSUS
VAIJNATH SHANKARRAO NAGARGOJE
...
Mr. S.G. Chapalgaonkar, Advocate for applicants
Mr. V.V. Bhavthankar, Advocate for the sole respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 30th AUGUST, 2021.
PRONOUNCED ON : 21st SEPTEMBER, 2021.
ORDER :
1 Present application has been filed for condoning the delay of
5302 days in bringing the legal representatives of applicant No.1 and delay of
6799 days in bringing the legal representatives of applicant No.2 on record.
2 Heard both sides.
3 The applicants are the original defendants and appellants in First
Appeal, who filed the Second Appeal No.572 of 1999. The said Second
2 CA_8981_2021
Appeal is pending for admission before this Court. However, in the
meantime, appellant No.1 Ram @ Rambhau Shankarrao Nagargoje expired
on 12.11.2006. Prior to that applicant No.2 Limbabai w/o Ram Nagargoje
expired on 07.10.2002. The applicant No.3 Vitthal Ram Nagargoje is their
son, who is already on record as appellant No.3, however, they are survived
by applicant No.4 Pandurang, who remained to be brought on record.
Hence, this application. It is stated that there is no abatement of the appeal,
as one of heir was already on record. Applicant No.4 was not aware about
the pendency of the proceedings, as it was looked after by his father and
thereafter by the brother. When the matter came to be listed on 27.07.2021
and the Advocate informed about the said fact to the applicants, it was felt
necessary that the applicant No.4 be brought on record. The delay is
unintentional and it is prayed that it be allowed.
4 The respondent has objected to the application, taking into
consideration the huge and inordinate delay.
5 At the outset, when one of the legal heirs was already on record,
then practically there may not be an abatement. However, the said applicant
No.3 was very well aware about the pendency of the Second Appeal, death of
his parents and the fact that applicant No.4 is another heir left by his parents.
It is not necessary that applicant No.4 should know about the proceedings. It
3 CA_8981_2021
would have been definitely sufficient for the applicant No.3 to bring the
application for bringing applicant No.4 on record. No plausible reason in
that way has been given.
6 Another point, that is, required to be harped upon is that the
Second Appeal has been filed in the year 1999 and it is yet awaiting
admission. This is the pathetic situation. Another fact to be noted is that
applicants were not diligent in prosecuting the matter. When the matter was
taken up for admission on 07.02.2006, it appears that a statement was made
that the parties would explore the possibility of amicable settlement and then
the matter was got adjourned. However, thereafter, when the matter was
called out on 06.06.2006, the Advocate for the appellants was absent. The
appeal was dismissed in default. The appellants then filed Civil Application
No.8964 of 2006 for restoration of the Second Appeal and by order dated
26.06.2009 the application was allowed. The Second Appeal was restored.
Thereafter, till 27.07.2021 the matter was not even got for circulation. The
applicants are unable to give any reason for the same. However, one more
fact that is then required to be considered that when the applicant/appellant
No.2 had expired on 07.10.2002, then how she could have been the party to
the application for restoration of the Second Appeal. But instead of going
deeply into that aspect, suffice it to say that even to the said application the
4 CA_8981_2021
legal representatives of appellant No.2 (except present applicant No.4) were
party. The only intention behind putting all these things into the order is to
show the lethargic approach by the applicants in prosecuting the matter.
Though the suit decreed against them and their appeal was dismissed; yet,
they were not serious in prosecuting the matter and further it is to be seen
that the present respondent-original plaintiff, in whose favour the decree has
passed, has not made a statement that he has got the decree executed. In
fact, there was absolutely no stay to the Judgment and Decree since 1999, at
least. If the parties do not themselves take interest in the matter, assert their
rights and further the Advocates are not taking due interest, then the Courts
may not help such negligent litigants. This is the unfortunate scenario of the
civil matters, as parties and Advocates are not paying due attention.
7 For the delay, that has been caused, the only remedy, that is now
available, would be to compensate the respondent adequately and to take up
the matter immediately for admission. Hence, the following order.
ORDER
1 The delay caused in bringing the legal representatives of
applicant Nos.1 and 2 is hereby condoned, subject to deposit of costs of
Rs.50,000/- (Rupees Fifty Thousand only), within a period of one month
5 CA_8981_2021
from today.
2 After the amount is deposited, amendment be carried out, within
a period of one week. In other words, deposit of costs is pre condition to
carry out the amendment.
3 After the costs is deposited, it be given to the respondent.
( Smt. Vibha Kankanwadi, J. )
agd
