SUKHARAM Vs. KISANRAO

JUDGEMENT

(1.) Present application has been filed by the original appellants for setting aside abatement of Second Appeal No.67 of 1993 which was ordered by this Court on 8/4/2019 thereby abating the appeal as a whole and for restoration of the appeal.

(2.) Heard learned Advocate Mr. Arvind Deshmukh for applicants and learned Advocate Mr. P. N. Sonpethkar for respondent No.1.

(3.) It has been vehemently submitted on behalf of the applicants/ appellants that the applicants/ appellants are the original defendants No.1 and 2 who have challenged the Judgment and decree dated 30- 12-1992 passed by learned District Judge, Parbhani in Regular Civil Appeal No.134 of 1982 reversing the Judgment and decree passed by the learned Civil Judge, Junior Division, Parbhani in Regular Civil Suit No.158 of 1974 on 30/6/1982. The original suit i.e. Regular Civil Suit No.158 of 1974 was filed for declaration of title and recovery of possession by the original plaintiffs who were respondents No.1 and 2 in the appeal before First Appellate Court, so also the original defendant No.3 Rukhmabai who was the mother of original plaintiffs No.1 and 2 was the defendant No.3. The recovery of possession was of agricultural land Survey No.147/B (9 Acres 15 Gunthas) situated in village Kanadkhed, Taluka Parbhani. The suit was also for the cancellation of fraudulent decree passed in Regular Civil Suit No.10 of 1959 passed by Joint Civil Judge, Junior Division, Parbhani on 19/6/1959. The learned 2nd Joint Civil Judge, Junior Division, Parbhani had dismissed the suit on 30/6/1982, however in appeal the First Appellate Court reversed that decree. By allowing the appeal the original plaintiffs were declared as owners of the suit land and they were held to be entitled to recover the possession of the suit land from the respondents No.1 and 2 therein i.e. present applicants/ appellants in the second appeal. In fact, after the presentation of the second appeal in 1993, initially respondent No.3 Rukhmabai expired on 30/3/1994, however no steps wee taken to bring her legal representatives. The fact which was not considered by this Court while passing the order dated 08- 04. -2019 was that respondent No.3 Rukhmabai was survived by respondents No.1 and 2 who are her sons, therefore they could have very well represented the estate. The right to sue survived however, thereafter, respondent No.2 Govind expired in 2011. Application for condonation of delay with bringing his legal representatives on record was filed vide Civil Application No.12168 of 2016, however that application came to be rejected. Even prior to that, Civil Application (Stamp) No.2481 of 2013 was filed on 21/1/2013 for bringing legal representatives of respondents No.2 and 3. However, it appears that the registration of Civil Application (Stamp) No.2481 of 2013 was refused. Another civil application was filed for setting aside learned Registrar's order dtd. 10/4/2013 and accordingly it was restored, but by order dtd. 23/11/2011 that Civil Application No.12168 of 2016 came to be rejected. It is to be noted that when respondent No.1 Kishanrao can represent the entire property and when right to sue survives, the appeal ought not to have been disposed of as abated as a whole. Kishanrao could have very well prosecuted the suit on behalf of brother and mother. A careful reading of provisions contained in Order 22 of Code of Civil Procedure as well as subsequent amendments thereto would lend credit and support to the view that substantial justice has to be done to the citizens when dispute in respect of landed property is involved. The procedure has always been viewed As handmade of justice and not mend to hamper the cause of justice. The provisions under order 22 of the Code of Civil Procedure cannot be construed as a rigid procedures. Further, when the second appeal was admitted long back itself then it ought to have been taken to the logical end. When the property was sufficiently represented in appeal, the appeal could not have been disposed of as whole and, therefore, the said order deserves to be set aside.