1 cas380.498.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 380 OF 2011 WITH CIVIL APPLICATION NO. 498 OF 2011 IN SECOND APPEAL NO. 458 OF 1990 Babu Sada Gaikwad & ors. ....Applicants. Vs. Shrimanth Bahiru Gavhane & ors. ....Respondents Mr. S.G. Kudle, Advocate for Applicants. Mr. Sandeep Salunke, Advocate for Respondent Nos. 1 and 2. CORAM:- GIRISH GODBOLE, J DATED:- SEPTEMBER 20, 2011 P.C. 1. Heard Mr. Kudle, Advocate for Applicants and Mr. Sandeep Salunke, Advocate for Respondent Nos. 1 and 2. By these Civil Applications following substantive reliefs have been prayed :- (a) This Hon’ble Court be graciously pleased to allow the Civil Application, and accordingly the Applicants be permitted to amend the Appeal Memo by adding the Respondents No. 3(a) to 3(c) as party Respondents; 2 cas380.498.11 (b) If any delay in filing this Civil Application be condoned in the interest of justice; delay of 21 years two hundred fourteen days. (c) Affidavit may kindly be dispensed. (ci) The Respondent’s No. 3(a) to 3(c) be allowed to be brought on record this legal heirs of Respondent No. 3 hereinabove. 2. The Appellants are original Plaintiffs in R.C.S. No. 312 of 1981 filed in the Civil Court, Barshi in which Bhairu Maruti Gavane was Defendant No.3. The Suit was filed for possession. The Learned Joint Civil Judge, Junior Division, Barshi dismissed the Suit on 24/9/1987. The original Plaintiffs filed Regular Civil Appeal No. 671 of 1987 in the District Court at Solapur. It is not in dispute and is evident from the death certificate annexed at Exh. A to the Civil Application and even Mr. Kudle does not dispute that Defendant No. 3 Bhairu Maruti Gavane/Respondent No. 3 in the Appeal in the District Court died on 25/5/1989. It is also not disputed that no application for bringing his heirs on record was filed in the District Court within 90 days. Appeal in the District Court was dismissed on 26th March, 1990 and hence the Second Appeal was filed, in which the Respondent No. 3 was shown impleaded though he had died during the pendency of the Appeal in the 3 cas380.498.11 District Court. The Second Appeal was admitted on 25/10/1990. Thereafter, notices were issued. Service report indicated that Respondent No. 3 has died. The Learned Single Judge of this Court (K.K. Tated, J) passed following order in the Second Appeal. “1 Heard learned counsel for appellant. 2 Office note shows that respondent no.3 is reported to be dead. Appellant to take appropriate steps to bring legal heirs on record of deceased respondent no.3 within four weeks from today. If appropriate steps are not taken within four weeks from today, the matter shall stand abated against respondent no.3. 3 Appellant to file paper book on or before next date. 4 Stand over to 04.03.2011. ” According to Mr. Kudle, in terms of the above order, this Civil Application has been filed. In this Civil Application, by Order dated 8/6/2011 notices were issued to the Respondent Nos. 3(a) to 3(c) and the said Respondents have been served. 3. According to Mr. Kudle, since the Appellant was not aware about the death of the original Defendant No. 3 during the pendency of the Appeal in the District Court and since the learned Single Judge passed an order dated 4/2/2011 quoted hereinabove, this Civil Application is 4 cas380.498.11 maintainable. Mr. Kudle further states that since notice has already been issued in the Civil Application, with a view to meet ends of justice, the Civil Application deserves to be allowed. 4. Mr. Salunkhe, Advocate for Respondent Nos. 1 and 2 has opposed the Application and it is submitted that the nature of Suit was such that the Decree which was sought was jointly sought against the Defendants and on account of abatement of the Appeal in the District Court against the one Defendant, the entire Appeal in the District Court would abate. 5. I have carefully considered the rival contentions. The provisions of Order 22 Rule 4 of the Code of Civil Procedure, 1908 are very clear. The abatement of a substantive proceedings against a party after expiry of period of 90 days, if the right to sue does not survive, is automatic. Sub Rule 4 of Rule 4 empowers the Court to exempt the Plaintiffs from necessity of substituting legal representative of any such Defendant who has failed to file a Written Statement or who, having filed it, has failed to appear. Sub Rule 5 of Rule 4 mandates that the Court must take into consideration the ignorance of death, if proved. However, the fact remains that the abatement takes place automatically and if the right to 5 cas380.498.11 sue survives, there is no abatement and heirs have to be brought on record. This aspect is clear from the provisions of sub-rule 1, 2 and 3 of Order 22 of C.P.Code, 1908. 6. In my opinion, therefore, assuming that the Plaintiff was not aware of the death of the Respondent No.3 during the pendency of the Apepal in the District Court, that cannot prevent the legal effect of abatement taking place. As a result, the Civil Appeal No. 671 of 1987 had abated against the Respondent No.3 Bhairu Gavane in the District Court itself. The question of bringing his heirs on record in the Second Appeal or abatement of the Second Appeal does not arise. Respondent No. 3 had died prior to filing of the Second Appeal and during the pendency of the Appeal in the District Court itself. It is also not clear as to whether he had died prior to conclusion of the hearing of the said Appeal or after conclusion of the hearing of the said Appeal. If he has died prior to the conclusion of hearing, the abatement would take place. If he had died after the conclusion of the hearing on account of Rule 6 of Order 22 there will be no abatement of the Appeal in the District Court. In any case, there is no question of abatement of the Second Appeal as against the Respondent No. 3 and hence, there is no question of condoning delay in 6 cas380.498.11 filing an Application for setting aside such abatement. The question regarding the exact date of conclusion of hearing of the Appeal in the District Court will have to be looked into after perusing the record and proceedings which have been received. The question as to whether entire Appeal in the District Court would abate or not has also to be considered at the final hearing of the Appeal. This Civil Application is however not maintainable. The same is rejected with clarification that the aforesaid questions whether the Appeal in the District Court abates or not and if it abates, whether entire Appeal abates or not will be gone into at the time of final hearing of the Appeal. Since this short question is involved, list the Second Appeal for directions after 3 weeks in the order caption. Parties are put to notice that the aforesaid questions will be considered at that stage. In the mean time, they are requested to complete inspection of the record and indicate the exact date of conclusion of the hearing of the Civil Appeal No. 671 of 1987 in the District Court at Solapur. 7. Submission of Mr. Kudle that because of the order dated 4/2/2011, Civil Application is maintainable cannot be accepted for the simple reason that the said order does not indicate that attention of the Court was invited to the fact that Respondent No.3 has died prior to the filing of the Second 7 cas380.498.11 Appeal. Similarly mere issuance of the notice in the Civil Application also will not make the Application maintainable, if it is otherwise not maintainable in law. 8. Both these Civil Applications are filed for the similar reliefs. Hence both the Civil Applications are disposed off by this common order with the above clarifications. (GIRISH GODBOLE, J)