Dismissed

Chintaman Bhagwan Phalak, Died Thr. L.Rs. Bhaskar and Ors. v. the Bhusawal Municipal Council, Thr. Its Chief Officer

Bombay HC12 Jan 2012WP/213/2012

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging an order allowing the plaintiff to bring the legal representatives of a deceased original defendant on record. The Court held that prayer for condonation of delay is implicit in such applications and the trial Court exercised its discretion plausibly.

What did the court decide?

Writ petition dismissed; no costs.

Chintaman Bhagwan Phalak, Died Thr. L.Rs. Bhaskar and Ors. Vs the… — Partition | Bombay HC (2012)

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1 W.P. 213.2012

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 213 OF 2012

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Office Notes,Office Court's or Judge's orders Memoranda of Coram,appearances, ................................ Court's orders or CORAM : S.V.GANGAPURWALA, J. directions and Registrar's orders DATE : 12/01/2012.

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Mr. Mukul S. Kulkarni, Advocate for the Petitioners.

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PER COURT :

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Heard Mr. Kulkarni, the learned counsel for the petitioners.

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The petitioner is the original defendant. The respondent has filed Suit for possession. During the pendency of the Suit, the original defendant Chintaman expired. The plaintiff filed an application on 15/10/2010 for bringing the legal representatives on record stating that vide the bailiff report dated 30/06/2010, the plaintiff got the knowledge on 07/07/2010 of the death of the defendant Chintaman. The said application is allowed. Aggrieved thereby, the present

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2 W.P. 213.2012

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Writ Petition is filed.

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Mr. Kulkarni, the learned counsel for the petitioner submits that the application for bringing the legal representatives on record was not within the prescribed period of limitation. The said application did not contain the prayer for setting aside abatement nor it contain the prayer for condonation of delay. No reasons were stated for not filing the application within the stipulated period. As per Order XXII Rule 4 ( 5 ) of the Code of Civil Procedure [ For short, ‘ the Code ’ ], unless the plaintiff shows sufficient cause for condonation of delay and makes a prayer for condonation of delay, the application for bringing the legal representatives on record can not be considered. The learned counsel further contends that the ground put-forth in the arguments by the plaintiff that it was not having knowledge about the names of the legal representatives, has been held to be erroneous by the Court itself as in the Suit filed by the present petitioners, the legal representatives were already brought on record and the respondent had appeared in the said Suit. The learned counsel contends that the order passed by the trial Court as such deserves to be set aside.

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With the assistance of the learned counsel I have gone through the application and the order.

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3 W.P. 213.2012

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No doubt, the application does not contain a prayer for setting aside abatement or for condonation of delay. The trial Court has taken into consideration all the aspects of the matter while passing the impugned order. It has taken into consideration the law laid down by the Apex Court in the case of Mithailal Dalsanagar Singh and others Vs. Annabai Devram Kini and others reported in 2003 ( 4 ) Mh.L.J. - 721 , wherein the Apex Court has held that when the application is made for bringing the legal representatives on record, the prayer for setting aside abatement is implicit in it. The same analogy can be applied for the condonation of delay. It has been time and again held that the provisions of Order XXII of the Code are not penal in nature. It is a rule of procedure and substantial rights of the parties can not be defeated by pendentic approach by observing strict adherence to the procedural aspect of the law. The respondent is a public institution. It has also been stated that the Chief Officer was deputed out of station for training purposes. The suit is a substantive Suit for possession.

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The trial Court has exercised the discretion in a plausible manner. As such I am not inclined to entertain the Writ Petition in the jurisdiction of this Court under Article 227 of the Constitution of India.

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4 W.P. 213.2012

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The Writ Petition as such is dismissed. No costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/W.P. 213.2012

Chintaman Bhagwan Phalak, Died Thr. L.Rs. Bhaskar and Ors. v. the Bhusawal Municipal Council, Thr. Its Chief Officer

Case brief

What is this about?

What did the court decide?

Chintaman Bhagwan Phalak, Died Thr. L.Rs. Bhaskar and Ors. v. the Bhusawal Municipal Council, Thr. Its Chief Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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