Dismissed

Saurabh v. Dixit v Mohanlal Dharmachand Shah (Jain) and Anr.

Bombay HC26 Sept 2013WP/2278/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the trial court's order condoning a two-day delay in impleading legal representatives of a deceased defendant. The court held that the trial court acted within its discretion and no error appeared warranting Article 227 intervention.

What did the court decide?

The writ petition was dismissed; the impugned order allowing amendment and condoning delay was upheld.

Saurabh v Dixit Vs Mohanlal Dharmachand Shah (Jain) and… — Landlord and Tenant | Bombay HC (2013)

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904.wp.2278.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2278 OF 2013

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Saurabh V.Dixit Vs.

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.. Petitioner

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Mohanlal Dharmachand Shah (Jain) and another .. Respondents Mr. Jagdish M.Chodankar, for Petitioner. Mr.Rakesh D.Dave , for Respondents.

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CORAM : R.G.KETKAR, J . DATE : 26^th September, 2013

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P.C. :

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. Heard Mr. Jagdish M.Chodankar, learned Counsel for the petitioner and Mr.Rakesh D.Dave, learned Counsel for the respondents at length.

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By this petition under Article 227 of the Constitution of India, the original defendant No.2 has challenged the judgment and order dated 25/02/2013 passed by the learned Judge, Court Room No.22 of Court of Small Causes at Mumbai below Exhibit 14 in R.A.E & R Suit No. 146/228 of 2012. By that order, the learned trial Judge allowed the application and condoned the delay of two days subject to payment of costs of Rs.1,000/- to the Legal Aid for the purpose of mediation within seven days from the date of the order. Subject to payment of the costs, the plaintiff was permitted to carry out amendment as per schedule within stipulated period of 14 days from the date of the order.

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In support of this petition, Mr.Chodankar submitted that one Ramanlal Sanghavi was the tenant in respect of the suit premises. He was carrying on business under the name and style of 'M/s.Aaren Company' and the rent receipt was in the name of that company. The said Ramanlal expired on 06/09/2000. Respondent No.1 instituted suit on 17/01/2012 against his son, Rajubhai. The said Rajubhai had expired on 14/05/2008. He therefore submitted that suit filed against a dead person is not maintainable. He submitted that the bailiff's report dated 16/03/2012 noted that the said Rajubhai had expired on 14/05/2008. Respondent No.1 thereafter, filed application on 28/08/2012 which was beyond the period of 150 days. Mr.Chodankar submitted that respondent No.1- plaintiff cannot be permitted to amend the plaint by brining the heirs and legal representatives of deceased person on record. In support of this proposition, he relied upon the decision in the case of Ali Mohd.Khan Vs. Vijay Tulsi , AIR 1986 J&K 26 . He submitted that this judgment was annexed along with affidavit of the petitioner. The learned trial Judge did not consider the said judgment.

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On the other hand, Mr.Dave supported the impugned order. He submitted that he has paid the costs. He further submitted that respondent No.1 was not aware of the death of Mr.Rajubhai. Respondent No.1 acquired the knowledge about the death of defendant No.1 after the receipt of the bailiff's report dated

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16/03/2012. Accordingly, respondent No.1 filed an application on 28/08/2012. He submitted that decision of the J&K High Court in case of Ali Mohd.Khan (supra) is not applicable as in the present case, respondent No.1 has filed the suit not only against Mr.Rajubhai but also against the petitioner being defendant No.2. He therefore submitted that it cannot be contended that suit filed against a dead person was nullity. Insofar as the delay in filing the application is concerned, he submitted that there was delay of two days and the learned trial Judge after imposing costs of Rs.1,000/-, has condoned the delay and allowed the application. He therefore submitted that no case is made for invocation of powers under Article 227 of the Constitution of India.

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I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. It is not in dispute that the said Rajubhai expired on 14/05/2008. Respondent No.1 filed the suit on 17/01/2012 against the said Rajubhai and the petitioner herein. The bailiff's report dated 16/03/2012 noted that said Rajubhai had expired on 14/05/2008. It is also not in dispute that application for bringing heirs and legal representatives is required to be filed within 150 days. The application was filed on 28/08/2012 and there was delay of two days in filing the application.

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In case of Ali Mohd.Khan (supra), the respondent therein

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had filed the suit against one Mr.Mohd. Sidiq Khan. During the pendency of the suit, the respondent filed application for bringing proper defendants on record. The High Court considered the Apex Court decision in case of Hira Lal Vs.Kalinath , AIR 1962 SC 199 , where the Apex Court observed the validity of the decree can be challenged in execution proceedings only on the ground that Court which passed the decree was lacking in inherent jurisdiction in the sense that it would not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed. In the present case, admittedly, the suit is filed not only against the Rajubhai but also against the present petitioner. Equally, the decree is yet to be passed as the suit is pending. In the case of Karuppaswamy Vs. C.Ramamurthy, AIR 1993 Supreme Court 2324, the plaintiff therein had filed a suit against a person not knowing that he had died six weeks prior to filing of the suit. The plaintiff became aware of the defendant's death only from remarks on the returned summons. Immediately thereafter he filed an application under Order 22 Rule 4 for impleading legal representatives of the dead defendant. The trial Court did not attribute any neglect or contumacy to the conduct of the plaintiff. It was rather observed that the plaintiff could have known the date of the death of the defendant only by the counter filed to plaintiff's application under Order 22 Rule 4 of C.P.C. Normally, if he

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had known about the date of death of the defendant, he would have filed the suit in the first instance against his heirs and legal representatives. The High Court too recorded a finding that there was nothing to show that the plaintiff was aware of the death of the defendant and yet knowing well about it, he would persist in filing the suit against a dead person. It was held that since the plaintiff had taken prompt action and had acted in good faith, the proviso to Section 21 (1) could be invoked in his favour and legal representatives of the deceased defendant could be impleaded.

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As noted earlier, the bailiff had submitted report dated 16/03/2012 recording therein Rajubhai had expired on 14/05/2008. Respondent No.1 thereafter filed application on 28/08/2012 and there was delay of 2 days in filing the said application. The trial Court observed in paragraph 4 of the impugned order that the plaintiff acquired knowledge about the death of Rajubhai on 26/03/2012 when the report dated 16/03/2012 made by the bailiff was noticed by the plaintiff. He filed application on 28/08/2012 and there was delay of 2 days. The learned trial Judge did not attribute any negligence or contumacy to the conduct of the plaintiff. Normally, if he had known about the date of death of the Rajubhai, he would have filed the suit in the first instance against his heirs and legal representatives. In view thereof, the judgment of the Apex Court in Karuppaswamy (supra) applies on all fours to the facts of the present case.

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In the light of the aforesaid discussion, I do not find that the the trial Court committed any error in allowing the application. In any case, the impugned order is purely discretionary as also interlocutory. In view thereof, no case is made out for invocation of powers under Article 227 of the Constitution of India. In the result, the petition fails and the same is dismissed.

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It is expressly made clear that where a decree is appealed from, any error, defect or irregularity in the impugned order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal as per section 105(1) of C.P.C.

Saurabh v. Dixit v Mohanlal Dharmachand Shah (Jain) and Anr.

Case brief

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Saurabh v. Dixit v Mohanlal Dharmachand Shah (Jain) and Anr.

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