KERU ALIAS HOMA AUSHIKAR Vs. BHAU GANPAT BHAMBRE

JUDGEMENT

(1.) This Writ Petition is filed challenging the Order dated 15/11/1994 below Exh.17,18and 19 in Regular Civil Appeal No. 277 of 1988 passed by the Additional District Judge, Ahmednagar, thereby rejecting the application for condonation of delay and application to bring legal representatives of deceased respondent/original plaintiff on record.

(2.) The learned counsel appearing for the petitioner submitted that the Court has not properly considered the provisions of Order 22 of the Code of Civil Procedure. The learned counsel further submitted that the sufficient cause was shown for condonation of delay for bringing legal representatives of deceased Bhau on record. The learned counsel further submitted that the Advocate of the defendant has not intimated to the Court or to the Advocate of the plaintiff about the death of deceased Bhau. Therefore, the lower appellate Court should have observed as per Order 22,1 Rule 9A of the Code of Civil Procedure that it i is obligatory on the defence to inform about the death of deceased Bhau. The learned counsel further submitted that the lower appellate Court by imposing some reasonable cost, should have allowed the application for condonation of delay in filing application to bring legal representatives on record in the interest of justice. It is further submitted that the lower appellate court should have observed that the said Appeal was sent for the purpose of preparation of paper book and, therefore, the matter was not taken up on board. More over, when the Advocate of the respondent informed to the Court vide Exh. 13 about the death of the respondent Bhau, it was not intimated to the Advocate of the petitioner in respect of the death of deceased Bhau. It is further submitted that the present petitioners are residing far away from Ahmednagar city and they are permanent resident of Nepti and, therefore, the petitioner has no knowledge about the death of deceased Bhau. The learned counsel further submitted that no prejudice or injustice would be caused to the respondents herein if the application for condonation of delay and application for bringing legal representatives on record of deceased Bhau is allowed. The learned counsel further submitted that the delay caused in bringing legal representatives of respondent/ original plaintiff is neither intentional nor deliberate. The learned counsel further invited my attention to the pleadings and grounds in the petition, annexures thereto and submitted that Writ Petition deserves to be allowed.

(3.) The learned counsel for the respondent submitted that the lower appellate court has taken into consideration the factual position and came to the definite conclusion that the application which is filed for condonation of delay for bringing legal representatives of respondent does not disclose sufficient cause. Learned counsel invited my attention to page 3 of Order passed by the Court below and submitted that, during the pendency of the Appeal, the respondent/landlord died on 7/6/1985 at Ahmednagar. The learned counsel for the respondent Shri. N. B. More placed on record a pursis on 14/6/1985 vide Exh.13. The Roznama/Order sheet dated 14/6/1985 of Regular Civil Appeal No.277 of 1988 shows that Mr. Mirikar, the counsel for the appellant as well as Mr. Shro Mone, the counsel for the respondent were present in the said appellate Court. On that day, a requisition was sent to the record keeper to submit record and proceedings of the trial Court. Similarly, on the same day, a pursis about the death of the respondent/landlord came to be placed on record by the counsel for the respondent vide Exh. 13. It clearly shows that the counsel of the respondent came to know on 14/6/1985 by virtue of said pursis Exh.13. Therefore, the learned counsel would submit that, when the lower court has recorded the findings and which is not perverse, this Court may not interfere under extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. The learned counsel further invited my attention to other paragraphs of the impugned order. The learned counsel further submitted that the provisions of Law of Limitations will come into play as soon as no application for bringing legal representatives is filed within 60 days from the death of the original plaintiff/ landlord. The learned counsel would submit that, even otherwise also as per the provisions under the Limitation Act, as soon as 60 days time is over, the Appeal came to be automatically abated. The learned counsel further submitted that, on facts, the Court held that the distance between the residence of the petitioner herein and deceased plaintiff is in close vicinity and it cannot be believed that the petitioner was not aware about the death of the deceased plaintiff and that too during pending Appeal before the lower appellate court.