POPATLAL PRABHUDAS AND SONS Vs. INDU ELECTRIC INDUSTRIES

JUDGEMENT

(1.) IT is not necessary to advert to all the events which have given rise to the filing of the present writ petitions. Suffice it to point out that an order was passed in favour of the original respondent No. 2 on his application, being Notice No. 145 of 1968, by the Appellate Court in Appeal No. 328 of 1978 and 201 of 1979. The relief granted in favour of the original respondent No. 2 was to get compensation, damages and mesne profits at Rs. 16,66,500/ -. In the circumstances, the petitioners herein against whom the said order was passed, filed present Writ Petition No. 3536 of 1985 challenging the said order. Whilst this writ petition was pending, the original respondent No. 2 died on 19-1-1989. Thereafter, application was filed by the petitioners to bring the legal representatives of deceased respondent No. 2 on record which was granted. This fact is not in dispute. As a consequence of that order the legal representatives of deceased respondent No. 2 were. added as respondents No. 2 (1) to 2 (5 ). After adding them as respondents, though the petitioners were required to take steps to serve the said newly added respondents, necessary steps were not taken as against the respondents Nos. 2 (1), 2 (3) and 2 (5) in spite of giving sufficient time. The office objection of furnishing postal stamps to serve the said respondents was not removed. Eventually the Addl. Registrar passed a conditional order dated 29-6-1995. In spite of that conditional order no steps were taken and as a consequence of which writ petition as against respondent No. 2 (1), 2 (3) and 2 (5) stood dismissed for non prosecution. When the Writ Petition was taken up for hearing on 20-6-2002, preliminary objection was raised by the counsel for the respondents No. 2 (2) and 2 (4) that this writ petition cannot proceed as petitioners have allowed the order which is impugned in this writ petition to become final as against respondent Nos. 2 (1), 2 (3) and 2 (5) and the decree passed by the Courts below was indivisible and inseparable, this writ petition ought to be dismissed on that count. In the wake of this objection, the petitioners took time to examine the position. The petitioners were advised to file application for recalling the order passed by the Additional Registrar dated 29th June, 1995 and for consequential order of permitting the petitioners to pursue the matter against the respondents 2 (1), 2 (3) and 2 (5) respectively. That application was considered by me on 4-7-2002 and eventually dismissed for the reasons recorded in the said order. In other words, the fact remains that the respondent Nos. 2 (1), 2 (3) and 2 (5) who are the legal representatives of respondent No. 2 and were brought on record, but the writ petition stands dismissed as against them. In other words, the order which is impugned in this writ petition has attained finality insofar as the said respondents are concerned. It is not in dispute that the order was passed against the respondent No. 2 and that order is inseparable and indivisible.

(2.) TO get over this position, the learned counsel for the petitioner contends that the respondents No. 2 (2) and 2 (4) are very much on record and they are representing the estate of respondent No. 2. In this view of the matter, contends Mr. Angal, writ petition will have to proceed on merits and the legality and correctness of the impugned order will have to be decided even though the respondents 2 (1), 2 (3) and 2 (5) are not on record due to the dismissal of writ petition against them. In support of his contention Mr. Angal has placed reliance on the decisions of the Apex Court in AIR 1989 SC 1589, Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, AIR 1958 SC 706, Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1971 SC 673, Ram Das and Anr. v. Dy. Director of Consolidation, Ballia and Ors. and AIR 1971 SC 742, Mahabir Prasad v. Jage Ram and Ors. . On the other hand, this plea is opposed by the respondent Nos. 2 (2) and 2 (4) represented by Mr. Dani, on the ground that the order which is impugned in the writ petition was passed in favour of respondent No. 2 and the same is indivisible and inseparable and as the same has become final insofar as respondents No. 2 (1), 2 (3) and 2 (5), who were entitled to contest the writ petition in their own rights as heirs and legal representatives of respondent No. 2, then there is no option for this court but to dismiss the writ petition by applying the principles enunciated by the Apex Court in (1995)2 SCC 159 in the case of Rajeshwari Amma and Anr. v. Joseph and Anr. and also the decision of the Division Bench of this Court reported in 1998 (1) Mh. LJ. 928, Sheela wd/o Vijay Choudari and Ors. v. Central Bank of India and Ors. .

(3.) HAVING considered the rival submissions, I have no hesitation in taking the view that the order passed in favour of the original respondent No. 2 and against the petitioners is an indivisible and inseparable order. The petitioners undoubtedly took steps to bring all the legal representatives of deceased respondent No. 2 on record within time and that prayer was granted. As a consequence of that order all his heirs being respondent Nos. 2 (1) to 2 (5), were added as respondents in the writ petition and were brought on record as such. However, the petitioners did not pursue the matter diligently as against the respondent Nos. 2 (1), 2 (3) and 2 (5) and for which reason writ petition came to be dismissed as against the said respondents. In other words, the impugned order has become final insofar as the said respondents are concerned. Reliance placed on the decision of the Apex Court in the case of Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique (supra) is of no avail. In that decision, the Apex Court was not examining the question as to the efficacy of the dismissal of the writ petition and allowing the order to become final in respect of some of the respondents. However, in that case the respondent Mrs. Nalini Bai Naique alone was brought on record and therefore, the Apex Court held that she represented the estate of the deceased and the proceedings therefore, would not abate. In the present case, the question is not one of abatement, lest there can be no abatement of writ petition (see AIR 1996 SC 1092) but the consequence of dismissal of Writ Petition after the heirs were already brought on record within time. Even the second authority pressed into service on behalf of the petitioners in the case of Nani Bai v. Gita Bai Kom Rama Gunge (supra) is of no avail. As is seen from Para 8 of this decision the Apex Court was dealing with the situation that the other heirs of deceased defendant No. 8 were not interested in pursuing the matter and they had not appeared before the court below. In the present case, it is not possible to assume that the respondents No. 2 (1), 2 (3) and 2 (5) were not interested in pursuing the matter. There is no such pleading or case made out by the petitioners before this court. In absence of that, said decision will be of no avail. The third decision relied by the leaned counsel for the petitioners is the case of Ram Das and Anr. v. Dy, Director of Consolidation, Ballia and Ors. (supra ). Even that decision is of no avail. In that decision the Apex Court was concerned with the question as to whether the other heirs of deceased party can be subsequently impleaded when one of the heir was already on record as legal representative. The Apex Court has held that the Appeal will not abate if all other representatives are impleaded on record except one for want of his particulars. As observed earlier, in the present case, the respondent Nos. 2 (1), 2 (3) and 2 (5) were already impleaded but the writ petition was not diligently prosecuted against them for which reason the same has been dismissed and that order has attained finality. The last decision relied on behalf of the petitioners is in the case of Mahabir Prasad v. Jage Ram and Ors. (supra) which also deals with a situation where the party respondent in an appeal died and one of his legal representatives is already on record in another capacity. The Apex Court observed that in such situation the appeal does not abate even though no application is made to bring the heirs on record. This authority is not an authority on the proposition that if the legal representatives are already brought on record and the writ petition is dismissed as against one or any of them and even if the decree or order which is impugned in the writ petition is indivisible and inseparable, the petitioner could prosecute the writ petition as against the remaining representatives of the deceased respondent. In the circumstances, I have no hesitation in taking the view that the writ petition cannot be allowed to proceed further in absence of respondent Nos. 2 (1), 2 (3) and 2 (5) in whose favour an indivisible decree which is impugned in this writ petition has become final. If this court was to proceed to decide the matter on merits in favour of the petitioners, it would result in inconsistent decrees being passed insofar as respondent Nos. 2 (2) and 2 (4) on the one hand and the respondent Nos. 2 (1), 2 (3) and 2 (5) on the other. The respondents who are not before the court were entitled to defend the matter in their own rights having inherited the property left by the deceased. The learned counsel for the respondent Nos. 2 (2) and 2 (4) is right in relying on the decision in Rajeshwari Amma and Anr. v. Joseph and Anr. (supra) to support this proposition. The Apex Court has observed that when the order becomes final in respect of one of the party who was not impleaded as respondent in the proceeding, just as in the present case that the respondent Nos. 2 (1), 2 (3) and 2 (5) were impleaded but the petition has been dismissed as against them, the order of delivery of possession in favour of the Decree Holder being common and inseparable and since it has become final as against such party, proceeding cannot be allowed to be prosecuted further. The learned counsel for the respondents is also justified in relying on the decision of the Division Bench of this Court in Sheela wd/o Vijay Choudhary and Ors. v. Central Bank of India and Ors. (supra) which more or less takes the same view that when the decree is inseparable and indivisible, the proceeding cannot be allowed to proceed further. In this view of the matter, the writ petition is dismissed with no order as to costs.