1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5694 OF 2009 AND WRIT PETITION NO.5723 OF 2009 Ashwini Cooperative Hsg.Soc.Ltd. & Anr ...Petitioners (in both the petitions) vs. Laxmanraorao Shankarao Shinde (since deceased) by legal representatives ...Respondents (in both the petitions) Mr.Sanjay Kshirsagar for the petitioners CORAM :A.S.OKA,J. DATE : AUGUST 11, 2009 P.C. 1 I have heard the submissions of the learned counsel for the petitioners in support of this petition. The facts leading to the filing of this petition are peculiar. The petitioners in this petition are the original defendants. One Laxmanrao was the original plaintiff. The said Laxmanrao filed a civil suit for declaration that the sale deed executed in respect of the suit property be declared as null and void. The suit property subject matter of the suit was an agricultural land. 2 The suit filed by the said Laxmanrao was dismissed by the trial court by order dated 16 th August 2002 by exercising power under Rule 2 of Order XVII of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). An application was made for restoration of the said suit. By order dated 3 rd January 2006, the trial court dismissed the application for restoration. An Appeal from Order was preferred by the present respondents for challenging the order of dismissal of the 2 restoration application. The said Appeal was dismissed by Judgment and Order dated 26 th October 2006. While dismissing the appeal, this court noted that the original plaintiff Laxmanrao died on 18 th November 2005 and his heirs were not brought on record in the application for restoration. This court observed that the application for restoration stood abated as the heirs of Laxmanrao were not brought on record. 3 A Letters Patent Appeal was filed by the present respondents for challenging the order passed by the learned Single Judge of this court. The Letters Patent Appeal was allowed by the Division Bench of this court by order dated 11 th June 2007. By the said Judgement, the suit was restored and a liberty was granted to make an application for bringing the heirs of Laxmanrao on record of the suit. An application for review of the said order was made by the petitioners. The said application was rejected by the Division Bench of this court. It is stated that a Special Leave Petition has been preferred against the order of Division Bench of this court in which notice has been issued. However, stay has not been granted by the Apex Court. 4 On the basis of the order passed by the Division Bench, an application was made by the respondents for bringing their names on record of the suit. By Judgment and Order dated 15 th April 2009, the learned trial Judge allowed the said application. Writ Petition No.5694 of 2009 has been preferred by the petitioner for challenging the said order. A separate order was passed by the trial court on 17 th April 2009 on the suit filed by the said Laxmanrao recording that the heirs of the said Laxmanrao i.e the original plaintiff have been brought on record and the suit stands restored. By the said 3 order, notice was issued to the petitioners to remain present in the court. Writ Petition No.5723 of 2009 has been filed impugning the said order dated 17 th April 2009. 5 The learned counsel for the petitioners submitted that there was no application made by the respondents for setting aside the abatement of the suit. He pointed out that there was no application made for condonation of delay and therefore, the trial court had no jurisdiction to grant the said application made by the respondents. He submitted that the respondents who have been brought on record of the trial court are not the legal representatives of the deceased plaintiff. He submitted that a specific contention was raised before the trial court that an enquiry as contemplated by Rule 5 of Order XXII of the said Code must be held. He submitted that the original plaintiff Laxmanrao had filed the suit on the basis of a probate obtained by him. He pointed out that the said probate has been revoked. An appeal preferred by the said Laxmanrao for challenging the order of revocation of probate is pending in this court. He submitted that as a result of the revocation of probate, even the original plaintiff Laxmanrao had no right to prosecute the suit and therefore without holding an enquiry as contemplated by Rule 5 of Order XXII of the said Code, the application made by the respondents ought not to have been allowed. He submitted that the order of this order in Letters Patent Appeal did not prevent the trial court from holding an enquiry on the question whether the respondents were the legal representatives of the original plaintiffs and whether the said legal representatives could have prosecuted the suit further. 6 I have given careful consideration to the submissions. As of today, the order passed by the 4 Division Bench of this court in Letters Patent Appeal is operating and is binding on this court. Perusal of the Judgment in Letters Patent Appeal and in particular paragraph 19 thereof shows that the Division Bench has held that considering the date of death of the original plaintiff and the date on which hearing of the application for restoration concluded, Rule 6 of Order XXII of the said Code was applicable. In fact, the Division Bench held that the there could not have been any abatement by reason of death of the original plaintiff. The operative part of the Judgment of the Division Bench of this court reads thus : 20 In the result, we allow the above Appeal and set aside the order dated 21-11-2006 passed by the Single Judge of this Hon ble Court in Appeal from Order and the order dated 3-01-2006 passed by the trial court and restore the suit to file and we grant liberty to the present Appellants to make necessary application for bringing themselves on record as plaintiffs in the suit. The parties are put on notice to appear before the Trial Court within 6 weeks from the date of pronouncement of our judgment and order. There will however, be no order as to costs. 7 An application for restoration of the suit made by the respondents who were claiming to be the legal representatives of the original plaintiff was not only entertained but the result of the order of the Division Bench is that the said application stands allowed. The Division Bench has expressly observed that there was no 5 question of abatement and therefore a liberty was granted to the respondents to make an application in the suit for bringing themselves on record as plaintiffs. Objection regarding locus of the respondents to apply for restoration of the suit has not been questioned before the Division Bench when the Letters Patent Appeal was heard. An application for review of the Judgment of the Division Bench was made by the petitioners. Even the said review petition has been dismissed by the Division Bench. In view of the decision of the Division Bench it is difficult to find fault with the impugned order passed by the learned trial Judge on 15 th April 2009 of permitting the respondents to prosecute the suit which was restored under the order of the Division Bench. The order dated 17 th April 2009 is merely a consequential order. 8 In the circumstances, it is not possible to interfere with the impugned orders. However, as the plaint has been amended by impleading the respondents- plaintiffs, it will be open for the petitioners to file additional written statement. The petitioners can always raise a contention in the written statement that in view of revocation of probate granted in favour of deceased Laxmanrao, the suit is not maintainable. 9 Subject to what is observed above, writ petitions are rejected. JUDGE