1 CRA 162/2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.162 OF 2004 Ibrahim Khan Ahmed Khan ] (deceased) thru LRs. ] Applicants Iqbal Ibrahim Khan & Ors. ] (LRs of Ori. Defts.) Vs. Smt. Maya Hariram Dayani ] Respondent Pune ] (Ori. Plaintiff) Mr. S.G. Deshmukh, Advocate for applicants. None for respondent. Coram : Smt. R.P.SondurBaldota, J. Date : 27th September, 2010 JUDGMENT 1. This Revision Application arises out of the order dated 3rd July 2004 passed by the District Court, Pune on Miscellaneous Civil Appeal No.163 of 1999. 2. The undisputed facts of the case giving rise to the revision application are as follows : One Smt. Maya Hariram Dayani had filed Regular Civil Suit No.574 of 1990 against one Ibrahim Khan Ahmed through her constituted attorney, one Harish Giridharilal Dodeja. Ibrahim died on 31st May 1993. The learned Advocate for him by the pursis dated 21st June 1993 informed the court about the death of Ibrahim Khan. 2 CRA 162/2004 For more than two years thereafter the plaintiff took no steps to bring the heirs on record. The suit then came to be disposed off as having been abated on 2nd September 1995 by following order: It appears from record that defendants counsel by filing pursis “ Exh.23 dated 21/6/93 inform the court that defendant has expired on 31/5/93 (31/5/93). However no steps have been taken uptill now to bring the LRs of deceased. Hence, suit stands dismissed as abated”. 3. On 29th January 1997, Miscellaneous Application No.231 of 1997 came to be filed on behalf of the plaintiff not for bringing the heirs of Ibrahim on record by setting aside abatement on condonation of delay, but for following reliefs. (a) “ the Hon’ble Court be pleased to restore the Regular Civil Suit No.574/90 to the file of the court and decide the suit on merits. (b) the Hon’ble Court be pleased to call the records and proceedings of original Regular Civil Suit No.574/90 dismissed on 2nd September 1995.” 4. In the application, the plaintiff had claimed that she was unaware of the dismissal of the suit until the filing of the application. She entirely blamed her Advocate for non communication of the fact of death of Ibrahim Khan. The revision applicants, who are the heirs of Ibrahim were served with the application, who in their reply at paragraph 2 contended that the application as filed simply for restoration of the suit was not maintainable. The parties thereafter 3 CRA 162/2004 led evidence on the application. After considering the evidence, the trial Court rejected the application by its order dated 9th February 1999. Unfortunately the trial Court did not deal with the contentions of the revision applicants about maintenability of the application for restoration. The application was rejected on merits as the trial Court found that the power of attorney allegedly executed on 21st September, 1988 on the strength of which the suit and the application for the restoration had been filed on behalf of the plaintiff by Harish Dodeja was not a genuine power of attorney. The Court also held that the date of dismissal of the suit was well within the knowledge of Harish atleast on 21st September 1995 as on that date, he had filed an application for certified copy of the judgment and decree in the suit. Hence, the application for restoration filed on 29th January, 1997 was grossly delayed. 5. The order of the trial Court was then challenged by filing Miscellaneous Civil Appeal No.163 of 1999 before the District Court, Pune. By the impugned order, the District Court allowed the Miscellaneous Civil Appeal and set aside the order of the trial Court. It also allowed Miscellaneous Civil Application No.231 of 1997 for restoration of the suit by setting aside the abatement and by granting time to the plaintiff to bring legal representatives of 4 CRA 162/2004 Ibrahim on record, within a period of two weeks after receipt of the records and proceedings of the suit. Mr. Deshmukh, the learned counsel for the revision applicants submits that the learned District Judge completely misread the application filed by the plaintiff as can be seen from the question framed for consideration at paragraph 9 of the impugned order which reads as follows : The only question is to be considered in this proceedings “ is that, whether the plaintiff has shown sufficient cause for not bringing LRs of deceased defendant Ibrahim on record within stipulated time”. The application filed by the plaintiff was not for bringing the legal representatives of Ibrahim on record. Therefore, the question framed by the Court for its consideration did not arise at all. The operative part of the impugned order is as strange as the question framed. It reads as follows : The appeal is allowed with costs as under : “ The Judgment and Order dt. 9/2/1999 passed by the learned 20th Jt. C.J.J.D. Pune in Civ. M.A. No.231/97 is hereby set aside. Civ. M.A. No.231/97 is allowed. The order dt. 2/9/95 in respect of abatement of suit passed in R.C.S. No.574/90 is hereby set aside. R.C.S. No.574/90 is restored. The Plaintiff-appellant is allowed to bring LRs of deceased defendant Ibrahim on record within two weeks after receipt of 5 CRA 162/2004 R&P of R.C.S. No.574/90 and Civ. M.A. No.231/97 in the court below. Inform the court below accordingly.” 6. The District Court while allowing Miscellaneous Civil Application No.231 of 1997 granted directions which had not been sought in the application. Such an order cannot be sustained under any circumstances. Therefore it must be set aside. Considering the facts of the case, the order of remand of the application for rehearing can also not be passed. When the suit was disposed off as having been abated, the only way it could have been restored was by filing application for bringing heirs of deceased defendant on record with prayers for condonation of delay and setting aside abatement. Therefore, the application filed by the respondent simplicitor for restoration of the suit was misconceived and not maintainable. Hence, the revision application is allowed. The order dated 3rd July 2004 passed by the District Court, Pune is set aside and Miscellaneous Civil Appeal No.163 of 1999 is dismissed. (Smt. R.P.SondurBaldota, J.)