1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO. 199 OF 1999 1. Maroti s/o SampatraoKawarkhe, age 29 years, occ. Agril., r/o Goregaon, Tq. Sengaon, Dist. Parbhani. ...Petitioner (Orig.Plaintiff) VERSUS 1. Limba Ganpati Kavarkhe, died per heirs & L.Rs. A) Ramkrishna s/o Limbaji Kawarkhe, age 52 years, occ. Agril., r/o Goregaon, Tq.Sengaon, Dist. Parbhani. B) Tulshiram s/o Limbaji Kawarkhe, age 42 years, occ. Agril., r/o as above. C) Pralhad s/o Limbaji Kawarkhe, age 45 years, occ. Agril., r/o as above. D) Ramchandra s/o Limbaji Kawarkhe, age 40 years, occ. Agril., r/o as above. E) Prakash s/o Limbaji Kawarkhe, age 35 years, occ. Agril., r/o as above. 2 F) Baban s/o Limbaji Kawarkhe, age 27 years, occ. Agril., r/o as above. G) Gajanan s/o Limbaji Kawarkhe, age 25 years, occ. Agril., r/o as above. H) Kisnabaiw/o Ramkishan Bhise, age 42 years, occ. Household, r/o Sabalkheda, Tq. Sengaon, Dist. Parbhani. I) Subhadrabai w/o Namdeo Tale, age 32 years, occ. Household, r/o Khudaj Tq. Sengaon, Dist. Parbhani. J) Sumitrabai w/o Digambar Tanpure, age 28 years, occ. Household, r/o Hirdar, Tq. Risod, Dist. Akola, 2) Bajirao Nivrati Avachar, age 40 years, occ. Agril., r/o Goregaon, Tq. Hingoli, 3) Pandurang Nivratti Avachar, age 31 years, occ. Agril., r/o as above. 4) Shankar Jairam Kavarkhe, age 55 years, occ.agril., r/o as above, 5) Bhiva Jairam Kavarkhe, age 40 years, occ. Agril., r/o as above, 6) Narayan Kaduji Khillare, age 40 years, occ. Agril., r/o as aboe. 7) Shrirang Rajaram Khillare, age 40 years, occ. Agril., 3 r/o as above. 8) Sakharam Tukaram Khillare, age 50 years, occ. Agril., r/o as above. ...Respondents (Original Defendants) ..... Shri A.H.Vaishnav, advocate for the petitioner Shri S.S.Choudhary, advocate for the respondent no.1-C. Respondent Nos. 4, 7 and 8 deleted as per Registrar’s order dated 23.10.2008. Respondent nos. 1-A, 1-B, 1-D to 1-J, 2, 3 and 6 absent though served. ..... CORAM : S.P. DAVARE, J. DATED : 16 th June, 2009. ORAL JUDGMENT : 1. Perused. 2. By the present Civil Revision Application, the petitioner (original plaintiff) has assailed the order passed by the learned Additional District Judge, Hingoli on Exh.46 in Regular Civil Appeal No. 74 of 1985 on 4.1.1999. 4 3. The factual matrix, in brief, are that the petitioner (original plaintiff) had filed Regular Civil Suit No. 118 of 1978 before the learned Civil Judge, Junior Division, Hingoli against the eight defendants, namely Limba Ganpati Kavarkhe and others for recovery of possession of encroached portion in respect of Survey No. 275 situated at village Goregaon, Taluka Sengaon, then District Parbhani (now District Hingoli) and also for mesne profits. 4. A compromise took place between the plaintiff and defendant nos. 2 to 8 in the said Regular Civil Suit No. 118 of 1978 and accordingly suit was partly decreed in that respect. However, subsequently the said suit came to be dismissed against defendant no.1 on 5.2.1985 by the learned Civil Judge, Junior Division, Hingoli. 5. Being aggrieved by the said judgment and order, the petitioner (original plaintiff) preferred Regular Civil Appeal No. 74 of 1985 before the District Court, Hingoli against the contesting defendant Limba Ganpati Kawarkhe and challenged the said judgment and order of dismissal of the 5 suit. 6. However, during the pendency of the said Regular Civil Appeal No. 74 of 1985 the only contesting respondent namely Limba Ganpati Kawarkhe expired on 5.9.1996. The learned advocate for the respondent filed a purshis informing to the Appellate Court about death of respondent no.1 on 19.9.1997 as per Order 20 Rule 10-A of Civil Procedure Code. Accordingly, it is the contention of the petitioner/plaintiff that he came to know about the death of respondent no.1 only on 19.9.1997 when the purshis to that effect was filed by the learned advocate for the respondent. Hence, immediately he preferred the application Exh.46 for bringing heirs and L.Rs. of deceased respondent no.1 on record of Regular Civil Appeal No. 74 of 1985 on 22.9.1997. However, there was delay of about 9 months 8 days for filing the said application as well as there was delay of 7 months 5 days for setting aside the abatement. It is the contention of the petitioner that the said delay was reasonably explained in the said application. The say of the advocate for L.Rs. of deceased of the respondent was obtained on application Exh.46 and, thereafter, the learned Additional District Judge, Hingoli 6 rejected the said application Exh.46 by order passed on 4.1.1999. 7. Being aggrieved by the said order dated 4.1.1999 the petitioner has preferred the present Civil Revision Application challenging the said impugned judgment and order and requested to allow the application Exh.46 preferred by him in Regular Civil Appeal No. 74 of 1985. 8. Heard both the learned counsel for the parties. 9. At the out set, undisputedly although the respondent Limba Kawarkhe expired on 15.9.1996. The learned advocate for the respondent filed purshis in Regular Civil Appeal No. 74 of 1985 only after about one year i.e. On 19.9.1997 as per Order 20 Rule 10-A of Civil Procedure Code informing the court about the death of sole respondent Limba Kawarkhe. Accordingly it is the contention of the petitioner that he came to know about death of sole respondent Limba Kawarkhe only on 19.9.1997 when the said purshis came to be filed by the learned advocate for the respondent and thereafter immediately within three days he preferred the 7 application Exh.46 on 22.9.1997 for bringing heirs and L.Rs. Of deceased respondent on record of Regular Civil Appeal No. 74 of 1985. 10. Apparently there is substance in the contention of the petitioner. In fact, the learned advocate for the respondent should have informed to the court about death of the respondent within reasonable time from the date of death of the respondent as per Order 20 Rule 10-A of the Civil Procedure Code. However, so did not happen and the learned advocate for the respondent informed about the death of the respondent after more than one year thereby limitation for setting aside the abatement and limitation for bringing heirs and L.Rs. of deceased respondent was elapsed without fault of the petitioner herein. 11. However, when the learned advocate for the respondent filed purshis on 19.9.1997 informing the death of respondent on 15.9.1996, the petitioner immediately filed application Exh.46 on 22.9.1997 i.e. within 3 days for bringing heirs and L.Rs. Of deceased respondent on record, which shows the diligence of the petitioner and, therefore, the 8 observations made by the learned Additional District Judge, Hingoli in the impugned order dated 4.1.1999 in that respect are insufficient since it is merely observed that, “As per Civil Procedure Code, advocate for deceased party is required to intimate court about death of his client. This provision is with intention to bring to knowledge the other side about death of party.” and there are no observations in respect of belated information given by the learned advocate for the respondent about the death of the respondent, that too after one year, as required under Order 20 Rule 10-A of the Civil Procedure Code. 12. Apart from that the other circumstance considered by the learned Judge in the impugned order was that both the parties i.e. Petitioner herein and deceased respondent were residing in the same village and it was observed that normally the fact of death of a person in a village is known to the others, and hence, he further observed that the petitioner must have got the knowledge about the death of respondent, but still he preferred application Exh.46 at the belated stage. In the said context, the petitioner has contended that he was residing at his farm house and, therefore, he did not get the 9 knowledge about death of respondent no.1. However, the said aspect apparently has not been considered by the learned Additional District Judge, Hingoli while passing the impugned order on application Exh.46 on 4.1.1999. 13. Moreover, reliance can be very well placed on the observations made by Division Bench of Madhya Pradesh High Court in para no.7 in the Ruling reported at AIR 1996 SC 1984 [State of Madhya Pradesh v. S.S.Akolkar] . “7. It is settled law that the consideration for condonation of delay under S.5 of Limitation Act and setting aside of the abatement under O.22 are entirely distinct and different. The Court always liberally considers the latter, though in some case, the Court may refuse to condone the delay under S.5 in filing the appeals. After the appeal has been filed and is pending, Government is not expected to keep watch whether the contesting respondent is alive or passed away. After the matter was brought to the notice of the counsel for the State, steps were taken even thereafter; after due verification belated application came to be filed. It is true that S.5 of Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective. “ 14. Considering the facts and circumstances, liberal view is required to be adopted while condoning the delay in respect of bringing heirs and L.Rs. Of deceased respondent on record, since 10 the substantive right of the petitioner herein is involved in the matter and also to avoid multiplicity of the proceedings. 15. In the circumstances, I am of the view that the approach adopted by the learned Additional District Judge while passing the impugned orders dated 4.1.1999 is erroneous and hence, the impugned judgment and order passed by the Additional District Judge, Hingoli on application Exh.46 in Regular Civil Appeal No. 74 of 1985 dated 4.1.1999 requires interference under the revisional jurisdiction. 16. In the result, this is a fit case to allow the Revision Application, and hence, present Civil Revision Application No. 199 of 1999 is allowed in terms of prayer clause ‘A’. The impugned judgment and order passed by the learned Additional District Judge, Hingoli on application Exh.46 in Regular Civil Appeal No. 74 of 1985 on 4.1.1999 stands quashed and set aside and the said application Exh.46 stands allowed and abatement, if any, in respect of respondent no.1 in Regular Civil Appeal No. 74 of 1985 also stands set aside and the petitioner to bring heirs and L.Rs. of respondent no.1, as stated in para 3 of the application, on record of Regular Civil Appeal No. 74 of 1985 at the earliest, and the said Appeal to proceed in accordance with law. Parties to appear 11 before the learned Additional District Judge, Hingoli in said Regular Civil Appeal o. 74 of 1985 on 1st September, 2009. (S.P. DAVARE, J.) dbm/cra199.99