1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.379 OF 1996 Narayan Hari Date & ors. .... Appellants Vs. Daulat S. Gulve (since deceased) .... Respondents through his Lrs. Mr. P.K. Hushing & S.N. Satpute, Advocate for appellants. Mr. Nitin Deshpande for respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 12th June, 2009 P.C. 1. This Second Appeal arises out of judgment and order dated 1st February 1996 passed by District Judge, Pune in Civil Appeal No.550 of 1993 by which the decree passed in Regular Civil Suit No.181 of 1981 was set aside and the suit dismissed. 2. Regular Civil Suit No.181 of 1981 was filed by two brothers Narayan and Nana against one Daulat for specific performance of contract. During the pendency of the suit, Nana died. As per the evidence led before the trial Court, Narayan was the only heir of Nana. Therefore, there was no application filed for bringing heirs of Nana on record. After the parties led their evidence, the suit was decreed by the judgment and order dated 23rd June 1993. Being aggrieved by the judgment and decree, Daulat filed Civil Appeal No.550 of 1993 to the District Court, Pune which was decided by order dated 1st February 1996 impugned in the present appeal. During the 2 course of time, Narayan and Daulat also died. Their heirs have since been brought on record who have continued the present proceedings. 3. Learned counsel for the appellants submits that the sole reason for allowing the appeal by the District Court was that the suit stands abated in its entirety on account of failure to bring on record the legal heirs of Nana. At paragraph 14 of the judgment of the appellate Court, there is reference to the decision of Division Bench of our High Court in Smt. Sarojdevi and others vs.Charushil and others reported in A.I.R.1986 Bombay, page 315. It has been held by the decision that the suit for specific performance of contract, which is joint and indivisible abates in its entirety when one of the plaintiffs, who is a party to the joint indivisible contract dies and his legal representatives are not brought on record within specified time. This is an established principle of law. However, the learned District Judge failed to appreciate that the same was not applicable to the facts of the present case, since the heirs of Nana were already on record. It has been stated in evidence by Narayan that he was the only heir of Nana, which statement was never disputed by Daulat. In that circumstance, it was necessary for the trial Court to record that Narayan continued in the proceedings not just for himself but also as the heir of Nana. This procedural formality was required to be completed in the suit, which the plaintiff in the suit as well as the trial Court failed to do. However, such failure will amount only to procedural irregularity and not affect the merits of the case. On that count, the suit could not have been dismissed. The lower appellate Court was not correct in allowing 3 the appeal on that ground and dismissing the suit. The impugned judgment therefore cannot be sustained and is liable to be set aside. However, perusal of the appeal memo in the Civil Appeal before the District Court shows that there are several other challenges, including the challenge on merit, raised therein. Those challenges have not been touched by the learned District Judge. Therefore, the Civil Appeal No.550 of 1993 is required to be remanded to the District Court for hearing on the other challenges in the appeal. Hence, the order.: O R D E R (i) The Second Appeal is allowed. The order dated 1st February 1996 passed by District Judge, Pune in Civil Appeal No.550 of 1993 is set aside. The Civil Appeal No.550 of 1993 is remanded to the District Court, Pune for hearing on the grounds of challenge other than abatement of the suit in view of death of Nana. (ii) The District Court, Pune to dispose off the appeal within four months from today. (iii) The interim orders passed in the present Second Appeal are continued until the decision in Civil Appeal No.550 of 1993. (iv) The appellate Court to act on authenticated copy of this judgment. (SMT.R.P. SONDURBALDOTA,J)