Allowed

Shankar Ramaswamy Naidu (Since Decd) through Legal Heirs, Smt. Parvatibai Shankar Naidu and Anr. v. Khalil Imran Abdul Masjid Shaikh

Bombay HC24 Jan 2013WP/634/2012

Case brief

AI extract

What is this about?

This writ petition sought to quash an order dismissing an application to condone delay and substitute legal representatives after an appeal abated due to the appellant's death. The High Court quashed the lower court order and allowed the petitioners to amend the appeal memo upon payment of costs, directing the lower court to hear the appeal on merits.

What did the court decide?

The impugned order dated 13.01.2012 is quashed. The application for substitution is allowed subject to payment of costs of Rs.10,000/- within two weeks and proof of payment.

Shankar Ramaswamy Naidu (Since Decd) through… — Civil Procedure and Limitation | Bombay HC (2013)

wp.634.12.903.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.634 OF 2012

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Shankar Ramaswamy Naidu (since deceased). Through L.Rs.. ..Petitioners - Versus - Khalil Imran Abdul Masjid Shaikh. ..Respondent

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Mr.Suresh M. Sabrad, for the Petitioners. Mr.Prasad B. Kulkarni, for the Respondent.

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CORAM: S.C. DHARMADHIKARI,J.

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DATE :- 24^th January, 2013.

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P.C.:

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1 This Writ Petition under Article 227 of the Constitution of India challenges the order passed by the Adhoc District Judge-2, Solapur on 13.01.2012 below Exhibits-16 and 19 in Civil Appeal No.20/2009.

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2 One Shankar Naidu was the original Appellant. He had filed an Appeal against the Decree of the Trial Court in R.C.S. No.503/2003 dated 26.11.2008. That suit was filed by the Respondent/ Plaintiff for possession of the suit property. It was decreed and aggrieved by the said judgment and decree, R.C.A. No.20/2009 was filed on 31.01.2009. The original Appellant Shankar Naidu expired on 20.10.2009. The Appeal was dismissed as abated on 10.02.2011 because despite enough time being given for substitution of heirs and legal representatives of the deceased, no steps were taken.

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3 Thereafter, the Applicants, who are Writ Petitioners before me

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claiming to be heirs and legal representatives of the deceased original Appellant, filed an application Exhibit-16 on 02.12.2011 seeking to condone the delay of 01 year 08 months and 14 days in making a written request to set aside the abatement and also prayed that they be substituted in place of the deceased Appellant and the Appeal be allowed to be contested on merits. They also filed an application Exhibit-19 seeking stay to the execution proceedings.

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4 What has been pointed out in that application is that the original Appellant expired on 20.10.2009. The heirs were dependent upon him. They could not arrange for giving instructions to their Advocate and equally they were unaware of the procedure and that is how the delay has occurred. The reasons assigned are genuine and bonafide. Thereafter, further affidavit was filed in which it was pointed out that now the Decree has been put in execution and the parties are apprehending dispossession. The learned Judge passed an order below application Exhibit-19 staying execution of possession warrant. This order was passed on 02.12.2011.

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5 Thereafter, the original Plaintiff/ Decree Holder filed the reply pointing out that the period of 90 days expired on own showing of parties on 20.01.2010. The application has not been made till December, 2010. There are no reasons assigned inasmuch as when close relatives are seeking to substitute themselves, they cannot take advantage and wake up and make such applications after execution proceedings are commenced and when possession warrant is to be issued and executed.

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6 The learned Judge has assigned reasons and which have been perused by me with the assistance of Mr.Sabrad, learned counsel appearing for the Petitioners and Mr.Kulkarni, learned counsel appearing for the Respondent/ Plaintiff.

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7 What appears from the record is that on 16.04.2012 this Court had observed that there was a dispute as to whether the Applicants

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were indeed aware of the procedures. The dispute was raised with regard to the affidavit of one V.S.Naidu (Petitioner No.2). Therefore, time was sought by the Petitioners and it was pointed out that it is incorrect that such statements have been deliberately made and with a view to mislead the Court. Thereafter, the matter has been placed for admission and further affidavit has been filed. In the further affidavit of the Petitioner No.2, what has been stated is that he is Power of Attorney Holder of the Appellant/Defendant. It may be that he has signed memo of appeal and the application for stay, but that was done as Power of Attorney Holder. He has stated that he has completely lost track of the matter and was awaiting response from his Advocate. After his father expired, he did not know the legal procedures and if this Court is of the opinion that any statement which is made by him is misleading, he tenders unconditional apology. He has stated that earlier Advocate was discharged and new Advocate has been engaged.

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8 After perusing the order passed by the learned Judge, it is really unfortunate that the learned Judge demands explanation for the delay and that too day to day. The learned Judge terms whole thing as mathematical equation and holds that the heirs of deceased ought to be brought on record within 90 days and if not, the Appeal abates. Precisely that is not held as such by this Court as well as the Honourable Supreme Court. Such matters have to be approached with liberal view and keeping in mind that the parties deserve an opportunity to establish and prove their case on merits. They should not be visited with penalties and that too of dismissal of their proceedings as that causes serious prejudice and loss to them and they lose properties which are valuable and for no fault of their. If their conduct is not found entirely blameworthy and in the sense it is not vitiated by malafides or demonstrating utter negligence, then, their explanation should not be scrutinized by applying strict

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principles and demanding explanation for each day's delay. The lower Appellate Court seems to be aware of all this, yet demands explanation for every day's delay. The lower Appellate Court is unaware of the legal position and that is by now too well settled to require any reiteration. The Honourable Supreme Court in the case of Bhagwan Swaroop and others v/s Mool Chand and others , reported in AIR 1983 SC 355 has held that the procedural laws cannot be brushed aside. The procedural laws need to be observed, but ultimately they are devised for advancing justice. The Honourable Supreme Court has held that in the event of death of a particular party, his heirs and legal representatives have to be brought on record within a particular period provided the cause of action survives and ultimately, the procedural provisions enable the Court to substitute them. The approach must be judicial and such applications as are made in the instant case have to be approached with a view to render substantial justice. The technical rules of procedure should not be given undue precedence over doing substantial justice. The relationship between pleader and party continues so long as the pleader takes its responsibility to inform opponents about his client's death and details of his heirs and legal representatives. In such circumstances the Court should adopt liberal approach.

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9 To my mind, all manuals and procedural provisions have thus been interpreted by the Supreme Court to mean that the Appellate Courts should render substantial justice. Therefore, all these reasons and to the extent of blaming parties for not meeting their Advocate in timely manner, would go to show that the learned Judge seems to be demanding a strict and complete explanation. In his view, such explanation is lacking in bonafides and that means adopting dilatory tactics.

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10 To my mind, if in the opinion of the learned Judge the explanation furnished by the Petitioners lacks in bonafides and

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demonstrating utter negligence on their part, then, the learned Judge instead of wasting time any further, should have allowed the application, but on a condition of payment of costs to be paid to the Respondent and should have directed that the Appeal be heard on merits after compliance of such order.

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11 That having not been done, the impugned order suffers from serious error of law and perversity. It cannot be sustained and requires to be quashed and set aside. Accordingly, the order impugned in this Writ Petition and passed by the learned Judge dated 13.01.2012 below Exhibits-16 and 19 in Civil Appeal No.20/2009 is quashed and set aside. The application made by the Petitioners stands allowed on the condition that they pay costs quantified at Rs.10,000/- to the Respondent within a period of two weeks from the date of receipt of copy of this order. The costs condition precedent. If the costs are paid within the above period and the proof is produced, the Appeal memo be permitted to be amended by substituting the present Petitioners as Appellants and thereafter, the Appeal be heard on merits and in accordance with law. If the costs are paid and amendment is carried out within a period of two weeks from the date of payment of costs, the lower Appellate Court shall make an endeavour to dispose of the Appeal expeditiously.

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12 The Writ Petition is disposed of in these terms.

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( S.C. DHARMADHIKARI,J. )

Shankar Ramaswamy Naidu (Since Decd) through Legal Heirs, Smt. Parvatibai Shankar Naidu and Anr. v. Khalil Imran Abdul Masjid Shaikh

Case brief

What is this about?

What did the court decide?

Shankar Ramaswamy Naidu (Since Decd) through Legal Heirs, Smt. Parvatibai Shankar Naidu and Anr. v. Khalil Imran Abdul Masjid Shaikh

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