Bombay High Court
Kantabai Machindranath Hake vs Suryabhan Shripat Hake And Others on 19 January, 2022
Bench: Mangesh S. Patil
.. 1 .. CA.1055.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
916 CIVIL APPLICATION NO. 1055 OF 2019
IN SA/234/2000
Kantabai Machindranath Hake .. Applicant
Versus
Suryabhan Shripat Hake and Ors .. Respondents
...
Advocate for applicant : Mr. Kishor D. Khade
Advocate for respondent Nos.2 to 4 : Mr. S.R. Deshpande
Advocate for respondent no.5 : Mr. A.N. Patale
...
CORAM : MANGESH S. PATIL, J.
DATE : 19-01-2022
PER COURT :
. This is an application for setting aside the order passed
by the Registrar (Judicial) dated 08-12-2010 declaring that the
appeal stands abated as against respondent no.1 Suryabhan and for
bringing on record his legal representatives by condoning the delay of
1669 days.
2. I have heard the learned advocates of both the sides.
The applicant / appellant asserting to have a share in the suit
properties has filed this appeal against Suryabhan respondent no.1,
.. 2 .. CA.1055.2019
his wife Ankitabai respondent no.2 and their two sons namely Ashok
and Dinkar, who are respondent nos.3 and 4.
3. Though now it is being declared that the appeal is
abated on death of respondent no.1 Suryabhan, considering the
nature of the dispute and cause being represented by all the
respondents together, the cause of action does not abate as against
rest of them who represent respondent no.1 Suryabhan. The appeal
would abate only if the cause of action does not survive qua the
surviving respondents, which is not the case in the matter in hand.
Therefore, though Suryabhan and subsequently Ankitabai who are
respondent nos.1 and 2 have died, since their two sons are already on
the record in the form of respondent nos.3 and 4 the appeal cannot,
in fact, abate.
4. Same is the case in respect of respondent no.4 namely
Dinkar who is also stated to have subsequently died. Again, since the
cause of action survives against the surviving respondent, namely
Ashok, appeal would not abate.
5. If such is the state-of-affairs, when there is no question of
any abatement of appeal because of death of some of the respondents
.. 3 .. CA.1055.2019
when Ashok is there since inception as respondent no.3, the order
passed by the Registrar (Judicial) disposing of the appeal as abated
against respondent no.1 Suryabhan is not sustainable. Therefore, the
prayer for condoning the delay is superfluous.
6. The applicant now only seeks to demonstrate and bring
on record the legal heirs of the surviving respondents. The
respondent no.3 Ashok is already there and the legal heirs of
respondent no.4 have also appeared / served.
7. So far as the dispute being raised regarding non-joinder
of Alka who is stated to be the daughter of deceased respondents
Suryabhan and Ankita and sister of respondents Ashok and Dinkar,
again, when she is being represented by Ashok and heirs of Dinkar
even if she is a legal heir her presence is not necessary for decision of
the appeal. One need only to refer to the following judgments :
(i) Perumon Bhagvathy Devaswom, Parinadu Village Vs.
Bhargavi Amma (dead) by LRs and others; [2009 (2)
Mh.L.J.] 1.
(ii) Nagpur Improvement Trust Vs. Sardar Mulkha Singh;
[2011 (6) Mh.L.J.] 324.
.. 4 .. CA.1055.2019
8. In view of above, the application deserves to be allowed
and is accordingly allowed.
9. The necessary amendment to be carried out within two
weeks in the appeal memo.
10. After such amendment, issue notice in the appeal to the
legal heirs of respondent no.4.
( MANGESH S. PATIL )
JUDGE
...
Gajanan
