Bombay High Court

Baburao Laxman Muley Deceased Thr ... vs Sk. Khairu Sk. Dada And Another on 4 January, 2022

Bench: R. G. Avachat

                                                 Appeal from Order No.21/2021
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                   APPEAL FROM ORDER NO.21 OF 2021


 Baburao s/o Laxman Muley,
 Deceased through L.Rs.

 1.       Suresh s/o baburao Muley,
          Age 49 years, Occ. Agri.,
          R/o Maliwada, Tq. and
          District Aurangabad

 2.       Vaishali w/o Shivaji Darunte,
          Age 38 years, Occu. Agri.
          R/o as above.

 3.       Dipali w/o Sandip Tambe,
          Age 33 years, Occu. Agri.,
          R/o as above.                              ... APPELLANTS

          VERSUS

 1.       Sk. Khairu s/o Sk. Dada,
          Age 64 years, Occu. Agri.,
          R/o Gavlipura, Cantonment,
          Aurangabad

 2.       Sk. Ismail s/o Sk. Khairu,
          Age 33 years, Occu. Agri.
          R/o as above.                              ... RESPONDENTS

                              .......
 Shri V.P. Langhe, Advocate for appellants
 Shri A.S. Bajaj, Advocate with
 Shri H.A. Bajaj, Advocates for respondents
                              .......

                                  CORAM :       R. G. AVACHAT, J.

                  Date of reserving judgment : 21st December, 2021
                  Date of pronouncing judgment : 4th January, 2022




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                                                       Appeal from Order No.21/2021
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 JUDGMENT :

The challenge in this appeal is to an order dated

10/3/2021, passed by Principal District Judge, below

applications Exhs.13, 16 and Exh.1 in Regular Civil Appeal

No.284/2015. By the impugned order, the applications made

by the appellants herein for condonation of delay in preferring

the application to come on record as legal representatives of

the original appellant - Baburao Laxman Muley came to be

rejected.

2. Facts giving rise to the present appeal are as

follows :-

The appellants herein are the legal representatives

(children) of the deceased Baburao Muely. The respondents

herein were the original plaintiffs in a suit being Special Civil

Suit No.506/20211. The said suit was filed against Baburao

for specific performance of agreement of sale of agricultural

land, executed by him in favour of the respondents

(plaintiffs). The suit was decreed, directing the defendant

(Baburao) to execute the sale deed. He, therefore, preferred

an appeal (being First Appeal No.1546/2012) to the High

Court. The appeal came to be admitted in December 2012,

Appeal from Order No.21/2021 :: 3 ::

granting stay to execution of the decree impugned therein.

Baburao passed away on 3/4/2015, pending the appeal. On

account of enhancement of pecuniary jurisdiction of the

District Court, the appeal came to be transferred to the

District Court on 27/11/2015. After having realised of the

pendency of the appeal, the appellants herein moved the

application (Exh.16) for condonation of delay to come on

record as legal representatives of the deceased appellant. It

was the contention of the appellants herein that they were

unaware of the pendency of the appeal. Two of the appellants

herein are the married daughters of deceased Baburao. Both

of them are residing at their matrimonial homes. No sooner

they realised the pendency of the appeal, they moved the

application.

3. The learned District Judge, on hearing the parties,

passed the impugned order with the following reasons :-

"16. Now keeping in mind all above principles and observations of Hon'ble High Court and Hon'ble Apex Court it has to be seen, whether there is sufficient ground to condone the delay in present case. First of all, it is pertinent to note that, in the application only contention of the applicants is that, deceased was looking after this dispute and applicants had no knowledge about this proceeding. First of all, it is pertinent to note that, as per the application at Exh.16, age of applicant Suresh is 49

Appeal from Order No.21/2021 :: 4 ::

years and is seems to have only son of deceased Baburao. Age of applicant Vaishali is 38 years and age of applicant Dipali is 33 years. So all applicants are grown up and major persons. In such circumstances it is improbable to accept that the only son of Baburao namely Suresh had no knowledge about the present dispute which is going on since 2011. Record and proceedings in Special Civil Suit No.506/2011 shows that, respondents had issued public notice after alleged agreement to sale.

17) Though it is argued by advocate of applicants that, applicant Suresh used to be out of village in connection with his service. Affidavit filed by Suresh is in support of this application shows that, he is agriculturist and residing at village Malidwada. Hence, above submission of advocate of applicants cannot be accepted.

18) Moreover, it is further notable that, exh.9 in record and proceeding of Special Civil Suit No.506/2011 shows that, suit summons in this matter was served upon the applicant Suresh. In view of this it cannot be said that, applicant Suresh had no knowledge about this dispute. Mere one line of the applicants that, they were not knowing about this proceeding is certainly not sufficient.

19) So far as ground of transfer of this proceeding from Hon'ble High Court to this court is concerned, I have already pointed out that, by order dated 29.08.2015 this proceeding is transferred to this court. Admittedly, date of death of Baburao is 03.04.2015. It means, when this matter was pending before Hon'ble High Court Baburao was died even prior to sending matter to this court. Moreover, record of the appeal shows that, after receipt of this matter in this court, on behalf of applicants steps were taken to secure the presence of respondents. What it indicates that, there were instructions to the advocate of appellants. Considering this fact

Appeal from Order No.21/2021 :: 5 ::

certainly now applicants cannot take benefit of transfer of this matter from Hon'ble High Court to this court for condonation of delay. Moreover, this ground is also not mentioned in the application."

The appellants are, therefore, before this Court.

4. Heard. Shri Langhe, learned counsel for the

appellants reiterated the reasons given by them in their

application for condonation of delay. According to learned

counsel, the litigation came to be nipped in the bud. Valuable

rights in the immovable property of the appellants have

thereby been affected. According to him, the daughters of

the of the deceased are residing at their respective

matrimonial homes. They were unaware of the pendency of

the appeal. As soon as the appellants learnt about the

pendency of the appeal, the application came to be moved.

Therefore, urged for allowing the appeal.

5. Shri Bajaj, learned counsel for the respondents

would, on the other hand, submit that, the appellants were

grossly negligent. They are grown up children of the

deceased. The suit summons was served on the appellant

Suresh. His address indicates that, he was not serving

elsewhere as has been alleged by the appellants herein. The

learned counsel has relied on the judgment of the Apex Court

Appeal from Order No.21/2021 :: 6 ::

in case of Balwant Singh (Dead) Vs. Jagdish Singh and others

[ (2008) 8 SCC 685 ] to ultimately urge for dismissal of the

appeal.

6. Considered the submissions advanced by the

learned counsel. Perused the applications moved by the

appellants in the appeal before the District Court. The

appellants are the children of deceased Baburao. The

respondents herein had filed the suit against Baburao for

specific performance of agreement of sale of agricultural land.

The suit was decreed. Baburao preferred First Appeal to the

High Court. Pending the appeal, Baburao passed away on

3/4/2015. The appeal thereafter came to be transferred to

the District Court since pecuniary jurisdiction of the District

Court came to be enhanced. After about a delay of 4 years 8

months and 3 days, the appellants herein moved the

application for condonation of delay to bring them on record

as legal representatives of the original appellant.

7. In case of Collector, Land Acquisition, Anantnag

Vs. Mst. Katiji [1987 CJ (SC) 155], the Apex Court has

observed :-

"1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Appeal from Order No.21/2021 :: 7 ::

2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.

4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

8. Moreover, the Apex Court, in case of Mithailal

Dalsangar Singh & ors. Vs. Annabai Devram Kini & ors. [ AIR

2003 SC 4244 ], observed thus :-

"8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of

Appeal from Order No.21/2021 :: 8 ::

abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement.

9. The Courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court."

9. Admittedly, two of the appellants are the married

daughters of the deceased Baburao. Both of them have been

residing at their respective matrimonial homes. Only because

appellants are adult children of the deceased, they cannot be

assumed to have had knowledge about pendency of the

appeal. Such assumptions attributed to them by the learned

District Judge is nothing but surmises and conjectures.

Admittedly, right, title and interest in the immovable property

of the deceased was involved in the suit. On his demise, the

appellants herein inherited the said land (subject matter of

the suit). It is their case that, agricultural land was an

ancestral land. Be that as it may. It was a case of pendency

of the First Appeal. The appellate Court, therefore, ought to

Appeal from Order No.21/2021 :: 9 ::

have considered the prayer of the appellants herein liberally.

Admittedly, the deceased Baburao passed away pending the

appeal in High Court. The appeal was, therefore, transferred

to the District Court for hearing in accordance with law. True,

learned counsel appearing for the deceased appellant did take

some steps in the appeal before the District Court. The same,

however, cannot be taken that those steps are taken by him

only on the instructions of the appellants herein. Had the

appellants herein in fact been in contact with their Advocate,

there would not have been any reason for them not to

intimate the learned counsel about the death of their

predecessor-in-title. Merely because Advocate took some

steps in the appeal, the appellate Court assumed the same to

have been pursuant to the instructions given by the

appellants herein. Even if we assume that Suresh, one of the

appellants (son of the deceased) had knowledge about

pendency of the appeal and it was his negligence to move the

application for condonation of delay to come on record as

legal representatives of the deceased Baburao, his inaction

shall not cause any prejudice to the right, title and interest of

his sisters, who have admittedly been residing at their

respective matrimonial homes. The cause of action for the

appellants herein to come on record as legal representatives

Appeal from Order No.21/2021 :: 10 ::

of the deceased appellant is one and inseperable. If the

impugned order is allowed to stand, it would necessarily be

prejudicial to the interest of the appellants herein. In view of

this Court, the matte needs to be decided on its own merits.

The delay could have been compensated in terms of money.

10. True, in Balwant's case (supra), the Apex Court

has observed :-

"Whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. The Court should not give such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If the Court should take a very liberal approach and interpret these provisions in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.

The principles enunciated in Perumon case, (2008) 8 SCC 321 are the principles which should control the exercise of judicial discretion vested in the Court

Appeal from Order No.21/2021 :: 11 ::

under these provisions. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay."

11. There can be no two views over the aforesaid

observations. The facts in Balwant's case indicate that it was

a suit between landlord and tenant for recovery of tenanted

premises. There was concurrent finding of fact recorded by

the Rent Controller and affirmed by the first appellate Court

granting an order of ejectment. The Hon'ble High Court had

set aside the judgment and order of eviction. The matter

approached the Apex Court in Special Leave Petition. The

leave to appeal was granted in February 2006. During the

pendency of the appeal before the Hon'ble Supreme Court,

the sole petitioner therein passed away. The Apex Court

found that there was vague averment that the legal