cas547-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 547 OF 2011 IN SECOND APPEAL (ST.)NO. 17729 OF 2007 Shri Shankar B. Shirsat, since deceased through his Heirs : 1A. Pushpa Shankar Shirsat & Ors. ... Applicants. V/s. Sakubai Waman Shirsat & Ors. ... Respondents. --- Mr. Uday Warunjikar for the Applicants. Mr. R.M. Hardas i/by P.N.Joshi for Respondents Nos. 1 to 6. --- CORAM:- GIRISH GODBOLE, J. DATED :- 19th SEPTEMBER, 2011. P.C. : 1 On 18th August, 2011 following order was passed in the Civil Application : “1 By this Civil Application, the following prayer is made:- “(a) Be pleased to set aside the abatement qua respondent No.3 herein and be pleased to allow the applicants to bring the legal heirs and representatives of the deceased respondent No.3 on record in the above referred Second Appeal, and kindly condoned the delay, if any.” cas547-11.sxw 2 2. What is annexed to the said Civil Application is death certificate of Dilip Ramchandra Shirsat, whereas what is sought by the present Civil Application is to bring the heirs of Dilip Waman Shirsat. Both these persons are different and both are parties to the proceedings. 3. In these circumstances, the learned Advocate for the Applicants seeks four weeks’ time to take appropriate instructions.”. 2 Assuming that leave to amend the Civil Application is granted and contending that the original text of the order was not available, the Advocate for the Applicants has proceeded to amend the title of the Civil Application and has made corrections thereby showing the Respondent No. 3 -Dilip Waman Shirsat as alive and the Respondent No.7(2)(A) - Dilip Ramchandra Shirsath, who had died, is shown as deceased. Though there was no order permitting the amendment, Mr. Warunjikar tenders apology for carrying out amendment without an order and submits that since the hearing was adjourned to take instructions and in all probability the prayer for amendment would have been granted, the amendment was carried out and prays that the amendment which has been carried out without a formal order permitting amendment, be accepted. Though such an amendment was not allowed, the explanation offered is accepted. cas547-11.sxw 3 3 I have heard Mr. Warunjukar on the merits of the Application. Second Appeal is filed by the original Plaintiff. In R.C.Suit No. 8/1989, the Defendant Nos. 3 (2) -Dilip Ramchandra Shirsath has died 21.01.1997 i.e. during the pendency of the Suit which was decreed on 30th March, 2000. Consequently, the suit has abated as against Defendant No. 3(2) in the Trial Court itself. Hence, there is no question of brining heirs of the said deceased Defendant on the record of the Second Appeal. Hence, the Civil Application is not maintainable and the same is rejected. 4 The question regarding legal effect of the death of the Defendant No.3(2) on maintainability of the R.C.Suit No. 8/1989 and further question whether the entire suit had abated or only the suit will abate partly against the Defendant No.3(2) will have to be considered at the time of hearing of Civil Application No. 1533/2007 for condonation of delay in filing the Second Appeal or at the time of admission if delay is condoned. For that purpose, copy of this order be kept in the original order sheet of Civil Application No. 1533/2007 and in S.A.(St.) No. 17729 of 2007. Order accordingly. [GIRISH GODBOLE, J.]