1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.5498/2010 LAXMAN MADHAORAO NAKADE & OTHERS ..VS.. RAMA MADHAORAO NAKADE Office Notes, Office Memoranda of Coram appearances, Court's orders of directions and Registrar's orders Court's or Judge's orders Shri Purohit, advocate for petitioners Shri R.D.Dharmadhikari, advocate for respondent CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 18, 2011. By this petition, the petitioner impugns the order passed by the appellate court on 18.8.2010 allowing the application filed by the respondent to implead the respondent as a party – appellant in place of deceased appellant – Wasudeo in R.C.A.No.251/1999. Wasudeo is the original plaintiff. He filed a suit against the petitioners and the present respondents for partition and separate possession of his share in the suit properties. The suit was dismissed. Wasudeo filed an appeal against the judgment passed by the trial court. It is necessary to note at this juncture that the present respondent, Rama had admitted the claim of Wasudeo by filing a written statement and had also sought for partition and separate possession of his share in the suit property. During the pendency of the appeal filed by Wasudeo, Wasudeo expired. Probably his legal heirs, his wife and his children were not interested in prosecuting the appeal and 2 seeking partition and separate possession for their share in the suit property and hence they did not apply for their substitution in place of deceased – appellant in the appeal. After noticing this fact the respondent filed an application before the first appellate court for transposing him as appellant to the appeal filed before the first appellate court. The application was seriously opposed by the petitioners on the ground that Wasudeo had expired on 15.7.2007 and the appeal had abated as the application for bringing his legal representatives on record was not filed within a period of 90 days and hence the application filed by the respondent on 19.12.2007 for transposing him as appellant was not tenable. The first appellate court, however, on an appreciation of the submissions made on behalf of the parties, by the impugned order dated 18.8.2010 allowed the application. Shri Purohit, the learned counsel for the petitioner submitted that the first appellate court committed a serious error in allowing the application. It is submitted on behalf of the petitioner that it was necessary for the respondent to have first brought the legal heirs of the deceased appellant on record within the prescribed period of limitation and then moved an application for transposition. It is submitted on behalf of the petitioner that the application for transposition could not have been filed without filing an application for condonation of delay in filing the application 3 for bringing legal representatives of the deceased appellant on record and setting aside abatement of the appeal. The learned counsel for the petitioner relied on the judgment reported in 19987(3) Mh.L.J. Page 618 to substantiate his submission that no application for transposition could have been entertained after the suit was abated. Shri Dharmadhikari, the learned counsel for the respondent submitted that the present suit was for partition and could not have been abated as all the parties, the plaintiff and the defendants were the parties having equal status. The learned counsel for the respondent submitted that the respondent had supported the claim of Wasudeo in the trial court and after the death of Wasudeo, since his legal heirs had not applied for bringing their names on record the respondent had rightly filed application for transposing him as party appellant. The learned counsel for the respondent relied on the judgment of the Hon. Supreme Court reported in AIR 2003 SC Page 1755 to substantiate his submission that in an appeal arising from a suit for partition the court can reverse a decree of the trial court at the instance of one or some of the plaintiffs /appellants and can also do so at the instance of the respondents also. The learned counsel for the respondents sought for the dismissal of the writ petition. On hearing the learned counsel for the parties and on perusal of the impugned order dated 18.8.2010, it appears that the first appellate court did not commit any error in 4 permitting the respondent to continue the appeal by impleading him as party appellant in place of deceased Wasudeo. The first appellate court held that the suit was based on the right to claim partition and separate share in the suit property and in order to consider the interest or share of the respondent in the ancestral property as a co- parcener, he was entitled to continue the appeal as party – appellant. The first appellate court held that the rejection of the application would have resulted in multiplicity of the proceedings and would have caused hardships to all the parties. The court further held that the respondent also fell within the meaning of the term “legal representative” under section 2(11) of the Code of Civil Procedure, as the term “legal representative” includes a person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The respondent was already arrayed as a respondent in the first appeal and had supported the case of the plaintiff before the trial court. The order passed by the first appellate court does not suffer from any jurisdictional error. The judgment reported in 2008(3) Mh.L.J. Page 651 and 1998(3) Mh.L.J. Page 618 are distinguishable on facts as they do not relate to a partition suit. The partition suit falls in a class of its own where all the parties are the plaintiffs and the defendants and have equal status. The fact that the 5 present suit was a partition suit, must have heavily weighed with the court while allowing the application filed by the respondent. As rightly submitted on behalf of the petitioner, the transposition application could not have been allowed in any suit than a suit for a partition and separate possession. But since the suit is for partition and separate possession, the appellants and the respondents are parties of equal status and the application for transposition was rightly allowed. The first appellate court committed no error in holding that there was no abatement of appeal as the respondent no.1 was already arrayed as respondent in the first appeal and since the respondent fell within the ambit of the term - 'legal representative', there was no question of abatement of appeal as such, specially6 when the suit was for partition. The first appellate court indeed acted judiciously in allowing the application filed by the respondent for transposition as party appellant and the order passed by the first appellate court needs no interference in exercise of writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE SMP