BHARAT GANGABISAN KALANTRI Vs. SANJAY CHANDRAKANT AND ORS.

JUDGEMENT

(1.) Heard.

(2.) The respondent no.1 filed Special Civil Suit No. 704 of 2009 praying for a decree for specific performance of contract. Shri Daulat Nago Shedame [defendant no.1], in that Civil Suit, died on 31st May, 2012. The plaintiff had filed an application [Exh. No. 33] under Order-XXII, Rule 4 of Civil Procedure Code, praying that he be permitted to bring on record the legal representatives of defendant no.1 - Daulat. Along with this application, the plaintiff had filed an application [Exh. No. 32] praying that delay in filing the application [Exh. No.33] be condoned and abatement be set aside. Learned trial Judge rejected the application [Exh. No.32] by order dated 1st December, 2015. The plaintiff challenged this order before District Court by filing an appeal under Order-XLIII, Rule 1 (k) of the Civil Procedure Code. This appeal is allowed by the impugned judgment.

(3.) According to the petitioner [defendant no.3], the appeal filed by the respondent no.1 - plaintiff was not maintainable. Learned Adv. for the petitioner argued that the order passed by the trial Court on application [Exh. No.32], against which appeal was filed, cannot be considered as an order under Order-XXII, Rule 9, Civil Procedure Code, and consequently, the appeal under Order-XLIII, Rule 1 (k) of the Code against that order was not maintainable. The submission cannot be accepted. Order-XLIII, Rule 1 (k) and Order-XXII, Rule 9, Civil Procedure Code, read as follows:-