ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL (L) NO. 548 OF (L) NO. 548 OF (L) NO. 548 OF 2007 2007 2007 IN IN IN SUIT SUIT SUIT NO. 749 OF 1981 NO. 749 OF 1981 NO. 749 OF 1981 Chandru Lachmandas Raheja, R/o. "Raheja House", Madhu Park, Khar, Bombay-400 052. ...Appellant. Vs. 1. Nancy Francis Rego. 2. Dorothy Francis Rego. 3. Gwendolin Francis Rego. All R/o. C/5/21/10:3; Sector 5, CBD Belapur, Navi Mumbai-400 614. 4a. Mr. Heidi R. Rego. 4b. Mr. Christopher R. Rego. the heirs of deceased Ronald Francis Rego (Ori. Def. No.4), 54, Normandy Avenue, Barnet Hertfordshire EN5 2JA, England. ...Respondents. Mr. F. Divetre, Senior Counsel, Mr. Birendra Saraf, Mr. Devesh Juvekar, Mr. M. Mehta i/by M/s. Humaranwala & Co. for the Appellant. None for the Respondents. CORAM CORAM CORAM : DR.S.RADHAKRISHNAN & : DR.S.RADHAKRISHNAN & : DR.S.RADHAKRISHNAN & ANOOP ANOOP ANOOP V. MOHTA, JJ. V. MOHTA, JJ. V. MOHTA, JJ. DATED DATED DATED : 07TH JANUARY, 2008 : 07TH JANUARY, 2008 : 07TH JANUARY, 2008. ORAL ORAL ORAL JUDGMENT (Per Dr.S. Radhakrishnan,J.):- JUDGMENT (Per Dr.S. Radhakrishnan,J.):- JUDGMENT (Per Dr.S. Radhakrishnan,J.):- . Heard the learned Senior Counsel for the Appellant. ( 2 ) None appears for Respondent Nos. 4-a and 4-b. We had by an order dated 28th November, 2007, in Notice of Motion No. 3945 of 2007, very categorically directed that in case if the delay is condoned, the above Appeal will be taken up for final hearing at the admission stage itself. On the basis of this, the Appellant has communicated the said order and sent the papers and proceedings to the Respondent Nos.4-a and 4-b. However, Respondent Nos. 4-a and 4-b have refused to accept the same and chosen to remain absent today. 2. The affidavit of service dated 19th December, 2007 has already been filed and the same is taken on record. 3. The appeal is admitted. The appeal is taken up for final hearing at the admission stage itself. 4. The learned Senior Counsel for the Appellant pointed out that on 10/04/1981, the appellant/ plaintiff had filed a suit for specific performance of an agreement dated 16/11/1979 to sell the respective one-seventh shares of defendant Nos. 1 to 3 (sisters) and original Defendant No. 4 (brother) in the suit ( 3 ) property. 5. On 27/03/2001 the issues were framed in the suit. Thereafter, on 26/03/2002, Defendant’s Advocate Mr. B.D.Joshi had sent a letter that he was instructed to appear for defendant Nos.1 to 3. On 08/07/2002, a letter was sent by Defendant Nos.1 to 3 that all correspondence be sent to advocate Mr. B.D.Joshi. On 18/11/2002, this Court passed an order on the application of the plaintiff-Appellant for bringing on record the heirs of Defendant No.4 on his death viz. present Respondent Nos. 4(a) and 4(b). Thereafter, the suit was listed on board on 15/01/2007 for recording the evidence. However, on that day no one was present for the Defendants. 6. It appears that, on 23/01/2007, Appellant’s Advocate had sent a letter to Mr. B.D.Joshi, Advocate for the Respondent Nos. 1 to 3 informing him of the order dated 15/01/2007. However, Advocate B.D.Joshi made a hand-written endorsement stating that he was not appearing for the Defendants and that as per his information, 2 of the 3 sisters (Defendant Nos.1 to 3) had died. Thereafter, on 25/01/2007, the Appellant’s Advocate had sent a letter to Defendants for seeking ( 4 ) names of the legal heirs of the Defendants who had expired. Defendant No.3 endorsed that defendant Nos.1 and 2 had expired. Again on 09/03/2007, the Appellant’s Advocate had sent a letter to defendant No.3 and requested to give the names of the heirs of deceased Defendant Nos. 1 and 2. However, at the time of service, a neighbour informed that Defendant No.3 had expired. The learned advocate for Defendant Nos. 1 to 3 did not comply with the provisions of Order 22, Rule 10A of Code of Civil Procedure-1908, by communicating the details of death of Defendants 1,2 and 3. 7. On 12/03/2007, the Appellant has filed the Chamber Summons No. 354 of 2007 for appropriate orders under Order 22 Rule 4(4) of the CPC 1908 or in the alternative, to proceed in the absence of the deceased Defendants or that their estate be represented by the Administrator General or an officer of this Court. However, on 12/03/2007, the said Chamber Summons was dismissed and therefore, the Appeal No. 559 of 2007 is directed against this order. On that day, a separate order passed in the Suit holding that suit against Defendant Nos.1 to 3 had abated and therefore, the present Appeal (L) No. 548 of 2007 is directed ( 5 ) against this order. It appears that, on subsequent enquiry from the Navi Mumbai Municipal Corporation, Appellant learnt that Defendant No.1 expired on 12th September, 2005 and Defendant No.3 expired on 5th March, 2007. The date of death of defendant No.2 is still unknown to the Appellant. It appears that Defendant Nos.1 to 3 have died as spinsters. At the time of their respective deaths, the then surviving sisters and on the death of the last of them, the heirs of their deceased brother who are already on record as Defendant Nos.4(a) and 4(b) would be their legal heirs. 8. The learned Senior Counsel for the Appellant brought to our notice the averments made in para 17 of the affidavit in support of the Notice of Motion No. 3945 of 2007 dated 17th October, 2007 which reads as under:- 17. "It is submitted that if the delay in filing the Appeal is not condoned, grave and irreparable harm, prejudice and injury will be caused to the Appellant which cannot be compensated in monetary terms. On the other hand, no harm or prejudice or injury would be caused to the Respondents if the delay in filing the present Appeal is condoned by this Hon’ble Court and the present Appeal is heard on its merits. The Appellant therefore, submits that the order impugned as ex-facie wrong and liable to be set aside as it is found that Defendant No. ( 6 ) 3 in any event expired only 5 days prior to the passing of the order, ruling out any question of abatement of suit as against her. In any case, the Appellants have also learnt that the Defendant Nos. 1 to 3 were spinsters and that the heirs of their deceased brother, original Defendant No.4 would also be the heirs of Defendant Nos. 1 to 3. The said heirs were already on record of the Suit and proceedings on 12th March, 2007. The balance of convenience is overwhelmingly in favour of the Appellant. It is submitted that it is in the interest of justice, equity and good conscience that the delay in filing the present appeal be condoned by this Hon’ble Court. There has been no negligence on the part of the Appellant. The Appellant has diligently pursued the matters as is clear from the record. 9. The learned Senior Counsel Mr.F. Divetre for the Appellant, also submitted that Respondent No.3 died on 5th March, 2007 and as such the learned Single Judge ought not to have treated the Suit as abated on 12th of March, 2007 against Defendant No.3. Over and above, the learned Senior Counsel pointed out that Nancy Francis Rego died on 12th September, 2005 and thereafter, Dorothy Francis Rego, Respondent No. 2 also expired. In any event, the learned Senior Counsel submitted that all the Respondent Nos.1, 2 and 3 are the sisters and spinsters and thereafter there is no legal representative other than their own brother, and the deceased brother’s legal heirs have been brought on record. So, the rights and interest ( 7 ) of Respondent Nos.1, 2 and 3 are being represented by present Respondent Nos.4-a and 4-b. 10. The learned Senior Counsel for the Appellant also brought to our notice the Judgment of the Supreme Court Mohammad Arif Vs. Allah Rabbul Alamin, AIR Mohammad Arif Vs. Allah Rabbul Alamin, AIR Mohammad Arif Vs. Allah Rabbul Alamin, AIR 1982, 1982, 1982, SC 948 SC 948 SC 948 in this behalf, wherein, the Supreme Court has categorically stated that where the legal heirs are already on record in some other capacity, then there is no necessity of again bringing them on record. Then a formal amendment would be sufficient. Under these circumstances, we set aside the order of the learned Single Judge dated 12th March, 2007 whereby the learned Single Judge has treated the suit as abated against Defendant Nos. 1 to 3. It is made clear that original Respondent Nos.1 to 3 are represented by defendant Nos.4-a and 4-b, who are already on record and they shall be treated as legal representatives in the above suit, on behalf of Defendant Nos. 1,2 and 3. 11. Under these circumstances, the Appeal is allowed. The impugned order stands set aside. The suit to proceed in accordance with law. However, there shall be no order as to costs. ( 8 ) (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)