[Cites 1, Cited by 0]
Bombay High Court
Rameshchandra Badriprasad Sahu And 4 ... vs Mohanlal Badriprasad Sahu And 17 Ors. on 22 May, 2026
23) SA 158-2008.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 158 OF 2008
APPELLANTS :- 1. Rameshchandra s/o Badriprasad
Ori. Defts. Sahu,
aged about 65 yrs. Occp- Cultivator,
2. Dineshkumar s/o Rameshchasndra
Sahu,
aged about 39 yrs. Occp- Service,
3 Rajeshkumar s/o Rameshchandra
Sahu, aged about 37 yrs. Occp-
education,
4. Yogeshkumar s/o Rameshchandra
Sahu, aged abut 31 yrs. Occp-
education,
All are Residents of Binda Bhavan,
Oppo. Manek Talkies, Tilak Road,
Akola, Taluka & District Akola.
5. Sau. Usha w/o Dineshchandra Sahu,
aged about 47 years, Occupation
-household work, Resident of C/o
Dineshchandra Gendalal Sahu, Gol
Ganj Galli, Hingoli, District Parbhani.
..VERSUS..
RESPONDENTS :- 1. Mohanlal S/o Badriprasad Sahu,
(Dead)
Aged about 70 years, Occupation
Landlord, Resident of Alsi Plots,
Akola, Taluka and District Akola.
.... Ori. Plaintiff
2. Ku. Nisha d/o Rameshchandra Sahu,
23) SA 158-2008.odt
2
aged about 35 yrs. Occp- household
work (Died during pendency of
R.C.A.)
Respondent Nos. 4 to 11 3. Sushilabai Wd/o Dharampal Sahu,
are legal heirs of
Respondent no. 3. (Dead)
Respondent Nos. 10 and aged about 63 years, Household
11 are also dead.
work,.
4. [Smt. Meera wd/o Anil Sahu,
aged about 46 years,household work]
Deleted
5. Ku. Jyoti d/o Anil Sahu,
aged about 26 years,
6. Ku. Swati d/o Anil Sahu,
aged about 27 years,
7. Ku. Renuka d/o Anil Sahu,
aged about 22 years,
8. Ku. Komal d/o Anil Sahu,
aged about 19 years,
9. 9. Ku. Kirti d/o Anil Sahu,
aged about 20 years,
Nos. 3 to 9 Residents of Binda
Bhavan, Opposite. Manek Talkies,
Tilak Road, Akola, Taluka & District
Akola.
10. Ashok s/o Dharampal Sahu,
Aged about 60 years, Occupation -
Service, Resident of Rly. Colony,
Bhusaval, District Jalgaon.
Amendment carried out 10 Sunita wd/o Ashok Sahu..... (widow)
as per order dt. 20/9/22
(i) Aged about 55 years, occ: Housewife
10 Ashish s/o Ashok Sahu .... (son)
(ii) Aged about 37 years, occ: Nil
23) SA 158-2008.odt
3
10 Shirish s/o Ashok Sahu ...... (son)
(iii) Aged about 32 years, occ: Nil
All are Residents of Binda
Bhavan, Oppo. Manek Talkies,
Tilak Road, Akola,
Taluka & District Akola.
11. Ganesh s/o Dharampal Sahu,
Aged about 41 years, Occupation-
Physiotherapist, Medical Hospital
Bhilai. (MP). [LRs.]
Amendment carried out 11 Sunita wd/o Ganesh Sahu.....widow)
as per order dt. 20/9/22
(i) Aged about 50 years, occ: Housewife
C/o: In the House of Dr. Raut,
House No. 44, First Floor, Ratan
Colony, Sonajiki Wadi, Near Bhola
Ganesh Square, Mahal, Nagpur -
440 032.
11 Prateek s/o Ganesh Sahu..... (son)
(ii) Aged about 29 years, occ: Nil
C/o: In the House of Dr. Raut, House
No. 44, First Floor, Ratan Colony,
Sonajiki Wadi, Near Bhola Ganesh
Square, Mahal, Nagpur - 440 032.
12. Sohanlal S/o Badriprasad Sahu, Aged
about 68 years, Occupation Nil,
Resident of Vilas Nagar Amravati,
District Amravati.
13. Manoj s/o Sohanlal Sahu,
aged about 38 years, Occupation
business,
Resident of Vilas Nagar, Amravati,
District Amravati.
23) SA 158-2008.odt
4
14. Vinod s/o Sohanlal Sahu,
aged about 31 years, Occupation
business,
Resident of Vilas Nagar, Amravati,
District Amravati.
15. Kamal s/o Sohanlal Sahu,
aged about 29 years, Occupation
business, Resident of Vilas Nagar,
Amravati, District Amravati.
Ref. to R.J. order 16. [Ku. Laxmi s/o Sohanlal Sahu,
dtd. 11/8/16
Appeal is abated against aged about 31 years,
R-16. Resident of Vilas Nagar, Amravati,
District Amravati.] Abated
Ref. to Court's order dtd. 17. [Kachrulal s/o Raghunath Joshi,
07/9/22
Appeal is abated against Aged about 83 years, Occupation -
R-17. business,
under the name and style of Kalyan
Hotel, Oppo. Manek Talkies, Akola,
Taluka and Distt. Akola.] Abated
18. Kanhiyalal s/o Prabhudas Kachalia,
aged about 65 years, Occupation
-Business under the name and style as
Ketan Sales, Oppo., Manek Talkies,
Tilak Road Akola, Tq. and District
Akola.
-------------------------------------------------------------------------------------------------------------------
Shri S.V. Sohoni, Advocate for Appellants.
Shri R.G.Kavimandan, Advocate for respondent nos. 1(A) to 1(B).
Shri V. G. Lohia, Advocate for the Respondent nos. 11(i) and 11(ii).
-----------------------------------------------------------------------------------------------
CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 08.05.2026
PRONOUNCED ON 22.05.2026
JUDGMENT:
23) SA 158-2008.odt
1) Heard finally with the consent of learned
advocates for the respective parties.
2) The present appeal is filed against the
judgment and decree dated 14/01/2008 passed by the
learned District Judge-2 Akola in Regular Civil Appeal
No. 364/2000, by which, the learned First Appellate
Court reversed the judgment and decree dated
17/03/1997 passed by the learned Civil Judge, Senior
Division, Akola in Special Civil Suit No. 163/1993.
3) During the pendency of Reg. Civil Appeal No.
364/2000, the appellant in the said appeal (respondent
No.1 herein) had expired. Although an application for
bringing his legal representatives on record was filed and
the same was allowed, amendment was not carried out in
the memorandum of appeal. The learned First Appellate
Court, however, allowed the appeal on merits. In this
backdrop, the present second appeal came to be admitted
vide order dated 07/09/2009 on the following
23) SA 158-2008.odt
substantial question of law:-
"Whether the judgment and decree passed by the
first appellate court could be said to be void since
appellant had already died when the judgment was
delivered?"
4) It will be pertinent to state that initially, the
appellant had filed Civil Application No. 4046/2008 inter
alia praying for remanding the matter to the First
Appellate Court for substitution of names of legal
representatives of deceased respondent no. 1 (Mohanlal),
who was the appellant in RCA No. 364/2000. However,
the learned Advocate for the appellant did not press the
said application and accordingly, the application came to
be disposed of vide order dated 29/07/2009 by granting
liberty to the appellant to raise substantial question of
law in this regard in the present second appeal. This
Court also granted liberty to the respondents to move an
appropriate application before the District Court seeking
permission to carry out amendment in the memorandum
23) SA 158-2008.odt
of appeal in Regular Civil Appeal No.364/2000, since the
order permitting substitution of legal representatives of
appellant in the said appeal was passed by the learned
District Court and merely the ministerial act of pasting
the amendment remained to be carried out.
5) Thereafter, the aforesaid substantial question
of law was framed and the appeal was admitted vide
order dated 07/09/2009.
6) Thereafter, the appeal was listed before this
Court on 29/02/2016 in view of office objection that an
appropriate amendment in the memo of Regular Civil
Appeal was not carried out in compliance of order dated
29/07/2009.
7) Vide order dated 29/02/2016, this Court
permitted the respondents /appellants in RCA to carry
out the amendment within a period of eight weeks in the
memorandum of appeal in RCA No.364/2000 in order to
bring the legal representatives of deceased Mohanlal on
record. Perusal of memorandum of appeal in RCA No.
23) SA 158-2008.odt
364/2000 will demonstrate that necessary amendment is
still not carried out in the appeal memo. Perusal of the
record will demonstrate that there is an office note which
records that on 21/11/2005, an unknown person entered
the Court Hall and destroyed the records of several cases
including the record of RCA No. 364/2000. The record
was ordered to be reconstructed. Original memorandum
of appeal is not seen in record of RCA No.364/2000.
Copy of appeal memo is not amended in order to
incorporate names of legal representatives of appellant
(respondent No.1 herein) in the said appeal.
8) Mr. Sohoni, learned Advocate for the
appellants contends that although an application for
bringing the legal representatives of deceased respondent
no. 1 who is the appellant in Regular Civil Appeal was
allowed, the names of his legal representatives were not
actually brought on record. The learned Advocate places
reliance on the Division Bench judgment of this Court in
the case of Nari NCP and anr. V/s. Income Tax Officer
23) SA 158-2008.odt
and anr. reported in 2018 SCC OnLine Bom 11902 and
contends that the appeal ought to have been dismissed as
abated since the legal representatives of deceased
appellant in the Regular Civil Appeal were not brought
on record.
9) The contention of Mr. Sohoni, the learned
Advocate for the appellants is that after the application
for bringing the legal representatives of the deceased
Appellant in Regular Civil Appeal was allowed,
amendment ought to have been carried out within a
period of 14 days as contemplated under Order VI, Rule
18 of the C.P.C. and failure to carry out amendment
results in abatement of the appeal. He contends that the
judgment passed in the appeal, which was abated, is a
nullity and non est. The learned Advocate, therefore,
contends that the present appeal deserves to be allowed.
10) It is difficult to accept the said contention. At
the outset, it must be stated that Order VI, Rule 18 of the
C.P.C. does not apply to appeals. It applies to amendment
23) SA 158-2008.odt
in pleadings. The term pleading is defined under Order
VI, Rule 1 of the C.P.C. to mean a plaint or written
statement. The memorandum of appeal is neither a plaint
nor a written statement. The provisions of Order VI of the
CPC deal with the pleading i.e. the plaint and the written
statement and the same are not applicable to
memorandum of appeal. The contention that the
amendment in memorandum of appeal cannot be carried
out after a period of 14 days unless expressly permitted
and that failure to carry out amendment in the
memorandum of appeal pursuant to orders dated
29/07/2009 and 29/02/2016, cannot be accepted.
11) As regards, the Division Bench judgment on
which the reliance is placed by the learned Advocate, in
the said case, the applications for bringing legal
representatives on record were allowed on an earlier
occasion, despite that, the legal representatives were not
actually brought on record by amending the
memorandum of appeal. Subsequently, fresh applications
23) SA 158-2008.odt
were filed at the stage of final hearing of the appeal in
order to bring the legal representatives of the deceased
appellant on record. The said applications came to be
rejected, principally on the ground that repeated
applications for the same cause i.e. bringing the legal
representatives of the deceased appellant on record could
not be entertained. However, a passing reference is made
to Order VI, Rule 18 of the C.P.C. The ratio of the said
order is certainly not that, the time frame of 14 days
prescribed for carrying out amendment in a plaint or
written statement will be applicable for carrying out
amendment in the memorandum of appeal in order to
bring the legal representatives of deceased parties on
record pursuant to order permitting substitution.
12) In the considered opinion of this Court, the
situation will be covered by the judgment of this Court in
the case of Harjitkaur Kuljitsingh Kohli V/s. Padmavati J.
Sethia and others reported in 2003 (4) BCR 567. It is
held in the said case that when an application for
23) SA 158-2008.odt
bringing legal representatives on record is allowed and
despite that the names of legal representatives are not
formally included in the title clause, the omission will be
of technical nature and also immaterial when the parties
contest the proceeding on merits. In the present case,
although the application for bringing legal
representatives of the appellant in Regular Civil Appeal
was allowed, the names were not brought on record by
carrying out the amendment, however, the appeal was
decided on merits after hearing both the sides. The
objection that the appeal stood abated since the legal
representatives of deceased appellant in Regular Civil
Appeal were not brought on record, is therefore,
technical in nature and is liable to be rejected.
13) It will also be appropriate to refer to the
judgment in the case of Rukmini Dattatraya Naik (Smt.)
and ors. V/s. Parmanand Lalchand Joshi and ors.
reported in 2001 (2) BCR 141. In the said case, the
learned Single Judge of this Court has placed reliance on
23) SA 158-2008.odt
earlier the Division Bench judgment in the case of H.H.
Darbar Alabhai Vajsurbhai and ors. V/s. Bhura Bhaiya
and ors. reported in AIR 1937 Bom 401 and has held that
once an application for bringing the legal representatives
on record is allowed, there is no question of abatement of
appeal. It is also held that the responsibility of bringing
legal representatives on record is either of the party or of
the Court staff. It is categorically held that merely
because title clause is not corrected, will not mean that
the appeal stood abated.
14) In view of the aforesaid, it is held that Regular
Civil Appeal did not abate since the application for
bringing legal representatives of deceased appellant on
record was allowed, although the title clause is not
amended accordingly thereafter. The substantial question
of law framed in the appeal will have to be answered in
favour of the respondent(s) and against the appellants.
15) However, there is another aspect which needs
to be considered.
23) SA 158-2008.odt
16) Record and proceedings in RCA No.364 of
2000 was destroyed by some unknown person. The
record was ordered to be reconstructed. It appears from
copy of an application dated 19/11/2005 which is at
page No.38 in the 'B' file of RCA No.364 of 2000 that
respondent No.5 in the appeal had expired and the
appeal was dismissed against the respondent No.14 vide
order dated 30/08/2005 passed below Exhibit 1. It
appears from the reading of paragraph-3 of the
application dated 19/11/2005 that deceased respondent
No.5 was survived by legal heirs. Order dated
30/08/2005 is not on record probably because the record
and proceedings was dismissed. However, there is a
handwritten order at page No.13 in 'B' file in which
following portion of order dated 30.08.2005 is recorded.
The said part of order is reproduced herein below:-
"No further steps are taken against resptd. No.14
since long. Hence appeal is dismissed against
respontd. No.14. So also the respontd. No.5
23) SA 158-2008.odt
Nisha reported to be dead in 2004. Her L.Rs. are
not brought on record. The application was filed
to bring the L.R. of respontd No.5 but further
steps are taken since long. So the appeal abates
against the respontd. No.5."
17) The appeal stood abated against the
respondent No.5 and dismissed against the respondent
No.14. Order sheet of the appeal from 09/12/2005 is
available on record. Order sheets dated 22.03.2006,
24.03.2006 and 17.04.2008 record that the appeal stood
abated against the respondent No.5.
18) At page No.38 in the 'B' file of RCA No.364 of
2000 there is an application dated 19/11/2005 in which
following prayer is made:-
"It is therefore most humbly prayed that the
application may kindly be allowed and the
order dt.30.08.2005 passed below Exh.1 be
kindly set aside and by condoning the delay,
23) SA 158-2008.odt
fresh notices be kindly issued to the respdt.
No.14 and the L.Rs. Of the respdt. No.5."
19) It appears that order for setting aside the
abatement is not passed. In the tile cause of the judgment
name of respondent No.5 is mentioned and in the portion
where appearances of learned advocates are recorded it
is mentioned that the appeal is stood abated against
respondent No.5. However, the learned First Appellate
Court has decided the appeal on merits. In view of the
aforesaid, following substantial question of law arises for
consideration:-
"Whether the abatement of appeal against
deceased respondent No.5 results in abatement
of appeal in its entirety and is the judgment and
decree passed by the learned First Appellate
Court void in view of said abatement?"
20) The order is pronounced during vacation.
Learned Advocates for the respective parties, except Mr.
23) SA 158-2008.odt
R.G. Kavimandan, Advocate for respondent Nos.1(A) and
(B), are not present. Office is directed to send a separate
communication to the respective learned advocates, who
are not present, on their registered email address and cell
phone numbers.
21) Stand over 24.06.2026.
(ROHIT W. JOSHI, J.)
Khapekar
