1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2126 of 2008 Bombay Municipal Corporation .. Appellant versus Bank of Baroda & Anr. .. Respondents ... Mr.J.J. Xavier for the appellant. Mr.R.S. Samant for respondent no.1. CORAM : D.G. KARNIK, J DATED : 8th December 2008 P.C.: 1. Heard learned counsel for the appellant and respondent no.1. 2. Respondent no.2 had died even before the filing of the appeal and even before the first municipal appeal was decided by the lower appellate court. Hence, service of notice to respondent no.2 2 is dispensed with. 3. The present appeal arises out of the fixation of rateable value in respect of the property bearing no.5363 of HW ward (hereinafter referred to as "the suit property"). The suit property belonged to Laxmibai Sitaram Patkar whwo let it out to the respondent no.1 - Bank of Baroda. Thereafter the appellant proposed to increase the rateable value of the property. Laxmibai objected to the increase and filed written objections. After hearing Laxmibai, by an order dated 26th March 2002, the appellant fixed the rateable value in respect of the suit property at Rs.6,46,485/-. 4. It appears that under the agreement between the respondent no.1 - and Laxmibai, the respondent no.1 had agreed to pay or reimburse to Laxmibai the property tax. The respondent no.1 therefore felt aggrieved by the increase in the rateable value and filed an appeal, bearing Municipal Appeal No.470 of 2005 in the Small Causes Court challenging the increase in the rateable value. Laxmibai, the landlady was joined as respondent no.2 to the appeal. By an order dated 2nd August 2003, the municipal appeal was dismissed as steps were not taken by the 3 appellant therein (the respondent no.1 herein) for service on the respondents. However, by an order dated 16th August 2003, the order of dismissal was set aside and the following order was passed: "Application is granted. The order dated 2nd August 2003 is hereby set aside and substituted as follows:- . Appeal stands restored to its original state and adjourned for completing service by granting alias, returnable on 15th September 2003. It appears that thereafter service was never effected on Laxmibai who was the respondent no.2 in the municipal appeal and the matter proceeded without she being served. In fact, Laxmibai had died on 4th October 2004 and the fact of death of Laxmibai was also not brought to the notice of the Court and the municipal appeal was heard in ignorance of the fact that Laxmibai had died. Thereafter, by the impugned judgement and order dated 7th February 2008, the Municipal Appeal no.470 of 2005 was allowed by the Small Causes Court and rateable value was set aside. The appellant was directed to reassess the property in 4 accordance with law. Aggrieved by that order, the appellant is in appeal. 5. In my view, the order passed by the Small Causes Court in Appeal needs to be set aside on the preliminary ground that no order could have been passed against laxmibai - the respondent no.2 in the municipal appeal who was dead and without bringing her heirs on record. In fact, there is no record that Laxmibai was ever served after restoration of the Municipal Appeal which was previously dismissed for non-service. The Small Causes Court therefore clearly erred in proceeding with the hearing of the municipal appeal and without bringing heirs of Laxmibai on record. 6. Learned counsel for the appellant submitted that Laxmibai was a necessary party for the municipal appeal and as her heirs were not brought on record, the entire municipal appeal abated. This issue requires consideration. Since no finding has been recorded by the Small Causes Court, on this issue, the matter is required to be remanded back to the Small Causes Court on that point. 7. For these reasons, the appeal is allowed. Matter is remanded back to the trial court for 5 re-hearing of the municipal appeal no.470 of 2005. The Small Causes Court among other issues shall also consider what is the effect of death of Laxmibai whose heirs have not been brought on record on the municipal appeal and whether it stood abated as a whole on death of Laxmibai. All other questions are also kept open and the Small Causes Court shall decide the municipal appeal without being influenced by any observations made by it in its earlier decision. (D.G. KARNIK, J)