VISHWAS V BHAGWAT Vs. GIRISH K VORA

JUDGEMENT

(1.) One Smt. Tehmina N. Bohariwalla had filed a suit being S.C. Suit No. 5833 of 1975 in the Bombay City Civil Court, as against the present petitioner and another for possession of a piece of land stated to be encroached upon by the defendants. During the pendency of the suit, the said plaintiff sold her right, title and interest in the property, of which the suit premises is a part, to respondent No. 1 under a registered deed of conveyance dated October 21, 1976. Respondent No. 1, however, did not make any application to the Court to be joined as party plaintiff. The said Tehmina (plaintiff) died on August 22, 1980. Some time in December 1981, respondent No. 1 took out a Chamber Summons for setting aside the abatement of the suit and for bringing himself on record in place of the deceased-plaintiff as a successor entitled in the place of heirs and legal represntatives of the deceased plaintiff. He also sought for condonation of delay in preferring the said application. In support of the Chamber Summons, he had not only filed his affidavit, but, he also relied upoon the affidavit of Navroji Nasserwanji Bohariwalla, the husband of the deceased-plaintiff. The learned Judge granted this Chamber Summons and set aside the abatement of the suit and further allowed the applicant to proceed with the suit. It is against this order that defendant No. 1 filed the present appeal.

(2.) In support of the Chamber Summons, respondent No. 1 stated that the suit was pending in the Bombay City Civil Court and it appeared on board on December 1, 1976, and thereafter it did not appear on any board. In the ordinary course it was not likely to reach for hearing in that Court when he made the said application. He has stated in his affidavit in support of his Chamber Summons that he came to know some time in November 1981 through the husband of the deceased-plaintiff that the plaintiff had died on August 22, 1980. It appears that her husband, the said Navroji Nasserwanji could not inform respondent No. 1 of the deate of the deceased-plaintiff because of the great shock he suffered and he himself being an aged person of more than 80 years. The said Navroji Nasserwanji in his affidavit has stated that he is an old man of about 80 years and that he has already had three heart attacks and was completely broken down and as both of his daughters being married and there being no one to look after him in his old age, he broke down in health. He also met with an accident after the death of his wife and was admitted to hospital for more than a month. He was again required to be admitted in the hospital and as a result of all this he completely forgot about the matter and could not inform respondent No. 1. Some time in November 1981 when the Secretary of defendant No. 2 met respondent No.1, respondent No. 1 came to know that the present petitioner was finalising the conveyance between himself and defendant No. 2 and that is how respondent No. 1 enquired about the papers and it is in those circumstances he met respondent No. 1 on or about November 19, 1981 and informed him of the death of his wife.

(3.) It was contended before the learned Judge that the application was not maintainable under Order 22, Rule 10 of the Code of Civil Procedure inasmuch as the suit had already been abated and that respondent No. 1 as a transferee of the property could not have made any application when the suit itself was not pending. To this, it was pointed out by respondent No. 1 that the application would be maintainable under section 146 of the Code of Civil Procedure and in support of this contention, respondent No. 1 cited the case of (Saila Bala v. Nirmala Sundari) reported in A.I.R. 1958 S.C. 394. The learned Judge relied on the said Supreme Court case and allowed the Chamber Summons. He also held on the question of condonation of delay that the appplicant had made out a case of sufficient cause for condoning the delay and, therefore, for making the said application.