MOHATTA BROS Vs. CHATURBHAIDAS CHIMANLAL

JUDGEMENT

(1.) The appellants Messrs Mohatta Brothers a partnership firm filed three suits being Civil Suits Nos. 106 of 1961 314 of 1961 and 33 of 1963 in the City Civil Court at Ahmedabad against the respon- dents for diverse reliefs. In Suit No. 106 of 1961 it was prayed that if the Court comes to the conclusion that the relationship between the plaintiff and the defendants was that of partners the Court should dissolve the firm of Messrs Chhaturbhuj Kharavala Mohatta & Company and order accounts to be taken. A similar relief was claimed in Civil Suit No. 33 of 1963 also. In Suit No. 314 of 1961 also the relief claimed was for the dissolution of the said partnership firm and for a share in the managing agency commission and for rendition of accounts. All these three suits were stayed under sec. 10 read with sec. 151 of the Code of Civil Procedure in view of the pendency of First Appeal No. 984 of 1960 in the High Court arising out of the dismissal of Civil Suit No. 205 of 1954. The said First Appeal came to be dismissed by this Court on 14/10/1976. It therefore appears that the aforesaid three suits were stayed from 1963 and onwards till the disposal of the appeal by the High Court on 14/10/1976.

(2.) It appears that while the suits were so stayed one of the defen- dants Sheth Bhagwandas Tejaji Kharawala expired on 28/03/1974. He was also a party to the First Appeal No. 984 of 1960 pending in the High Court. It appears that Shri Rasiklal Mehta the power-of- attorney-holder of the plaintiffs in the aforesaid appeal made an appli- cation in the High Court for bringing on record the legal representatives of deceased Bhagwandas Tejaji Kharawala on the allegation that he learnt about his demise for the first time somewhere in the first week of October 1974. He therefore prayed that the delay in filing the application should be condoned the abatement should be set aside and the legal representatives of Bhagwandas Tejaji Kharawala should be brought on record in the Appeal which was then pending before the High Court. It is common ground that the High Court allowed that application and there- upon the legal representatives of the deceased were brought on record. Almost two years thereafter the appeal was disposed of by the High Court on 14/10/1976.

(3.) So far as the three suits which were pending in the City Civil Court are concerned as stated earlier they were stayed under sec. 10 read with sec. 151 of the Code of Civil Procedure as the First Appeal No. 984 of 1960 arising out of the dismissal of Civil Suit No. 205 of 1954 was pending in the High Court. During the subsistence of the stay Shri Rasiklal Mehta the power-of-attorney-holder of the plaintiffs in the said three suits filed an application on 29/11/1974 in Civil Suit No. 314 of 1961 and on 2/12/1974 in the other two Civil Suits for bringing the legal representatives of deceased Bhagwandas on record. In the said three suits he also filed separate applications for condon- ation of delay under sec 5 of the Limitation Act 1963 read with Order 22 Rule 9 (3) of the Code of Civil Procedure. In the said three applications he stated that he learnt about the death of Bhagwandas for the first time on 28/11/1974 when a Purshis giving intimation about his death came to be filed in Suit No. 314 of 1961 by the learned advocate representing the deceased. It is clear from the above undisputed facts that even though the defendant Bhagwandas died on 28/03/1974 the applications for bringing his legal representatives on record were not made till 29/11/1974 in Suit No. 314 of 1961 and on 2/12/1974 in the other two suits. Thus all the three applications for bringing the legal representatives of the deceased on record were filed after a lapse of ninety days from the date of demise and also after a lapse of further sixty days during which period an application for setting aside the abatement should have been made under Order 22 Rule 9(2) of the Code of Civil Procedure on the ground that intimation about the death was first received on 28/11/1974 on the filing of the Purshis in Civil Suit No. 314 of 1961 by the learned advocate representing the deceased in the aforesaid three suits.