spb/- 1 caw896-897-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL APPLICATION NO. 896 OF 2011 IN W.P. NO. 1748 OF 2000 WITH CIVIL APPLICATION NO. 897 OF 2011 IN C.A. NO. 896 OF 2011 IN W.P. NO. 1748 OF 2000 National Co-operative Consumers Federation of India Ltd., ... Applicant/s. V/s. Shri Thomas Mathew & Ors. .... Respondents. --- Mr. C.M. Jadhav i/by Mahesh Menon & Co. for the Applicant/s. Mr. Phoroz Colabawala with Mr. Sachin Kudalkar i/by Madekar & Co. for the Respondents. ----- CORAM : G. S. GODBOLE, J. DATE : 14th SEPTEMBER, 2011. P.C. : 1 Heard Mr. Jadhav for the Applicant/s and Mr. Colabawala for the Respondents and proposed Respondent. 2 In Civil Application No. 897/2011 following substantive reliefs have been prayed : spb/- 2 caw896-897-11.sxw “(a) That this Hon’ble Court pleased to condone the delay of 7 years and 259 days in filing the Civil Application Stamp No. 26816 of 2010 for bringing legal heirs of the Respondent No.1 (a) on record ; (b) That this Hon’ble Court pleased to condone the delay of 112 days in filing the Civil Application stamp No. 26186 of 2010. (c) That the costs of the Civil Application be provided for; (d) Such further and other reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case be granted;” 3 In Civil Application No.896 of 2011, following substantive reliefs have been prayed : “(a) That this Hon’ble Court pleased to permit the Applicant to carry out amendment to the Petition as per the Schedule annexed hereto; (b) That the Applicant be permitted to carry out consequential amendments to the Petition; (c) That the costs of the Civil Application be provided for; (d) Such further and other reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case be granted;” spb/- 3 caw896-897-11.sxw 4 It is not in dispute that Respondent No.1.a- late Thomas Mathew had been impleaded in his capacity as Trustee, that the said Respondent had died on 30th October, 2002 and that Mr. Suresh Thomas, proposed Respondent is the new Trustee substituted in place of Respondent No. 1(a). 5 The Applications are, however, opposed by contending that : (a) by order dated 8th July, 2010 the Writ Petition had already been dismissed as against Respondent No.1(a) and hence, the only remedy available to the Applicant is to file an Appeal against that order in a superior court; (b) that the reasons given for the delay in filing the Civil Application No. 897/2011 are not sufficient and do not deserve any acceptance; (c) that Civil Application No. 896/2011 cannot be allowed since even after providing the information about the name of the new Trustee in the month of July, 2010 and after passing of the order dated 8th July, 2010, there is a further delay from 8th July, 2010 to October, 2010, when this Civil Application had been filed; (d) reliance is placed on the Judgment of the learned single Judge of this Court -S.A.Bobade, J. in the case of State Bank of India vs. M/s. Kumar Apparel Industries & Ors., [2002 (4) ALL MR 682] and particularly observations in paragraphs nos. 7,8 and 9 of the said Judgment. spb/- 4 caw896-897-11.sxw 6 I have considered the submissions. As stated above, it is not in dispute that the original Respondent No.1(a) was joined only as Trustee in the proceedings of the Writ Petition. As held by the Supreme Court in the case of Puran Singh vs. State of Punjab, (1996 (2) SCC 205), the provisions of Order 22 of the Code of Civil Procedure, 1908 do not strictly apply to the proceedings under Articles 226 and 227 of the Constitution of India and all that is required to be done is to take steps with reasonable expedition for substitution of the heirs or legal representatives of the deceased Petitioner/Respondent. It is not in dispute that the Respondent No.1.a(a) is the Trustee who had been appointed after death of Respondent No.1.a. In the reply Affidavit which has been filed, there is nothing to indicate that the death of the Respondent 1(a) was intimated to the Applicant prior to July, 2010 nor is there anything to indicate that the fact that the Respondent 1a(a) had been appointed as Trustee, had been intimated to the Applicant within three months. 7 The order dated 8th July, 2010 passed by the learned single Judge on which heavy reliance is placed to contend that the remedy of the Applicant is to file an Appeal has to be considered in proper perspective. The said order prima facie does not indicate that attention of the Court was invited to the fact that Respondent No.1(a) had been impleaded spb/- 5 caw896-897-11.sxw only in his capacity as Trustee. Apart from this, all that the said order does, is to pass a formal order of dismissal of the Writ Petition as against Respondent No.1(a) as abated on account of his death. Once an Application for substitution of the name of the deceased Respondent Trustees by new Trustees is made, a prayer for setting aside such a formal order as the one dated 8th July, 2010 is inherent. Even otherwise, the said deceased Respondent No.1(a) was only a Trustee and one other Trustee is already on record. Thus, despite the death, right to sue survives and in that sense, there would even otherwise be no abatement of the proceedings as contemplated by Order 22 of the Code. Law requires that the Trustee who is newly appointed should be substituted instead of and in place of the deceased Trustee and hence the Applications in question are essentially for substitution and not for setting aside abatement. 8 The reliance placed on the Judgment of the learned single Judge in the case of State Bank of India, cited supra, is also not well placed. That was a case arising out of a Civil Suit and the learned single Judge was considering the provisions of Order 9 of the Code of Civil Procedure, 1908 which is not the case in hand. spb/- 6 caw896-897-11.sxw 9 For all the aforesaid reasons, a case for granting relief in both the Civil Applications is made out. Hence, I pass following order : i Civil Application No. 896 of 2011 is allowed in terms of prayer clauses (a) and (b). Amendment to be carried out forthwith. ii Civil Application No. 897 of 2011 is allowed in terms of prayer clauses (a) and (b). [G.S.GODBOLE, J.] .....