Bombay High Court
Shri Vijay Ambadas Dattatraya ... vs Shri Ramppa Ambannapa Masare on 21 November, 2022
Bench: R. I. Chagla
37-IA 2885.21 in FA 1081.96.doc
K.S. Jadhav
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2885 OF 2021
IN
FIRST APPEAL NO. 1081 OF 1996
Vijay @ Ambadas Dattatraya Pawar ...Applicants/
(deleted since deceased) Appellants
Through Kamal Ambadas Pawar & Ors.
Versus
Ramappa Amanappa Masare & Ors. ...Proposed
Respondents
(Original
Respondents)
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Mr. Machindra Patil i/b A.R. Rayani, Advocate for Applicants.
Mr. A.S. Alange, Advocate for legal heirs of Respondent No.1
i.e. for Respondent Nos. 1A to 1C and 1E to 1F
Mr. Abhinav A. Bhatkar i/b Vijay Killedar, Advocate for
Respondent Nos.6A to 6F in IA 2885/2021 and for Respondent
Nos. 7A to 7C in IA 2887/2021 and for Respondent Nos. 3A/3B1,
3B2, 3B3, 3C, 3D & Respondent No.5 in IA 2884/2021.
----------
CORAM : R.I. CHAGLA, J.
DATE : 21st November, 2022.
ORDER :
1. By this Interim Application, the Appellant is seeking
37-IA 2885.21 in FA 1081.96.doc
condonation of delay of 11 months 22 days in preferring the
Interim Application. Further relief has been sought for setting
aside of abatement of First Appeal No.1081/1996. The Appellant
has sought permission to amend the Appeal Memo in FA
No.1081 of 1996 by joining the proposed Respondents in place
of original Respondent No.6.
2. The Applicant has stated that the First Appeal had been
filed against the judgment and order passed by the District
Judge, Solapur in Civil Misc. Appeal No.248 of 1989 dated 14 th
February, 1995. During the pendency of the first appeal, original
Respondent No.6 expired on 20th January 2020 leaving behind
the proposed Respondents as the only surviving legal heirs and
legal representatives, particulars of whom are annexed at
Exhibit-A to the Interim Application as well as copy of Death
Certificate of the original Respondent No.6.
3. Upon the death of original Respondent No.6, the
Applicant/Appellant sought to contact their Advocates and duly
informed and communicated the fact regarding the death of the
37-IA 2885.21 in FA 1081.96.doc
original Respondent No.3 to his Advocate. The Applicants'
Advocate could not take appropriate steps to come on record for
and on behalf of the original Appellant. Thereafter, the Applicant
has stated that the Advocate on record has taken proper steps
and the Applicants did not bother to check with their Advocate.
It was upon the Applicants engaging their Advocate in another
second Appeal, it was discerned that the Civil Application for
bringing legal heirs on record has not been filed, and
accordingly, the first Appeal had abated and was dismissed in
default. The Applicants state that this fact has came to their
knowledge only on 29th August, 2019 and thereafter they met
their Advocate to take proper steps in the matter.
4. The Applicants state that the first Appeal had come on
board on 11th February, 2020 when the Advocate appearing for
the Respondent informed the Court that the Respondent No.6 has
expired and no steps has been taken by the Advocate for
Appellant. This Court had thereafter passed the said order
directing that if such application has been filed by the Original
37-IA 2885.21 in FA 1081.96.doc
Plaintiff, the same shall be placed on board on 4 th March, 2020
alongwith this Application. The reliance has been placed by
the Applicants on the Covid Virus and in view thereof there was
delay in filing the Interim Application. The delay is of 11
months and 22 days in preferring the Interim Application which
Applicant has stated, is not deliberate and hence, the delay may
be condoned.
5. Learned Advocate appearing for Respondent No.6A to 6F
has submitted to the order of this Court.
6. Considering that by a prior order dated 7 th October, 2022,
this Court had allowed Interim Application No.2884 of 2021 for
bringing the heirs of original Respondent No.3 on record as well
as allowed Interim Application No.2887 of 2021 for bringing of
Original Respondent No.7 on record where also there was delay
and the abatement was set aside on account of the heirs of the
concerned Respondents not objecting, a similar order is required
to be passed.
7. Further upon considering the averments in the Interim
37-IA 2885.21 in FA 1081.96.doc
Application, I am satisfied that a case has been made out for
grant of the relief sought for in the Interim Application as well
as the delay in filing the present Interim Application has been
satisfactorily explained. Hence, the following order is passed :
i) The delay of 11 months 22 days in preferring Interim
Application is condoned.
ii) The abatement of first Appeal No.1081 of 1996 is set
aside.
iii) The Applicants are permitted to amend the Appeal
Memo in First Appeal No.1081 of 1996 by joining the
proposed Respondents in place or stead of original
Respondent No.6 as the legal heirs of Original Respondent
No.6.
iv) The amendment shall be carried out within a period
of 2 weeks from the date of this order.
v) Interim Application is accordingly disposed of.
[R.I. CHAGLA, J.]
