1 AO NO.151/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.151 OF 2011 1. Smt. Radhabai Govindsing Pardeshi, Deceased through L.Rs. Sariyabai Kashinath Pardeshi, Age: Major, Occu:Household, R/o. Pardeshipura, Nandurbar, Tq. And Dist. Nandurbar. 2. Shri Kashinath Tikaram Pardeshi, Since deceased through L.Rs. 2-a. Shri Ranvirsing Kashinath Pardeshi, Age: Major, Occu: Business, R/o Pardeshipura, Nandurbar, Tq. & Dist. Nandurbar. 2-b. Shri Rajesh Kashinath Pardeshi, Age: Major, Occu: Business, R/o Pardeshipura, Nandurbar, Tq.&Dist.Nandurbar. 2-c. Sau.Manorama Dinesh Raghuwanshi, Age: Major, occu: Household, R/o. Dinesh Raghuwanshi, DDE Phones, Types-412, Telecom Quarters, 24 Street, Sector-1, Bhilai. ...APPELLANTS (ORIG.DEFENDANTS) versus 1. M/s Babulal Paragji and Company, Nandurbar, Tq.Nandurbar, District Nandurbar. 2. Chimanlal @ Bhurabhai Babulal Shah, Deceased Through L.Rs. 2 AO NO.151/2011 2A. Bhupendra Bhurabhai Shah, Since Deceased Through L.Rs. 2-A-i Smt.Pravinaben w/o Bhupendrabhai Shah, Age: 61 years, Occu: Agriculture, R/o. Nandurbar, Tq. And Dist.Nandurbar. 2-A-ii.Shri Nilesh Bhupendrabhai Shah, Age: 41 years, Occu: Agriculture, R/o. Nandurbar, Tq. And Dist.Nandurbar. 2-A-iii. Palakben w/o Rahulkumar Shah, Age: 38 years, Occu: Household, R/o. 16, Sai Apartment, Surat Gujrat. 2-A-iv. Shri Dipesh Bhupendrabhai Shah, Age: 33 years, Occu. Service, r/o. 536, Board Street, Apartment No.228, Irvivy Texas, 75038 USA. 2B. Mahendrakumar Bhurabhai Shah, Age: Major, Occu. Agriculture, r/o. Nandurbar, Tq. And Dist. Nandurbar. 2C. Rajnikant Bhurabhai Shah, Age: Major, Occu.Agriculture, R/o. Nandurbar, Tq. And Dist. Nandurbar. 2D. Smt.Chanchalaben Bhurabhai Shah, Age: Major, Occu: Household, R/o. Nandurbar, Tq. And Dist.Nandurbar. 2E. Sau.Dakshaben Prakash Shah, Age: 28 years, Occu: Household, r/o. Andheri West, Plot No.11, 3rd floor, Ashirvad Mandir Cooperative Housing Society, S.V.Road, Andheri(W). ...RESPONDENTS ... 3 AO NO.151/2011 CORAM : K.U. CHANDIWAL, J. Dated: November 29, 2011 ... Mr. V.J.Dixit, Senior Counsel, h/f Mr. A.B.Girase, Adv., for the appellants. Mr. R.R.Mantri, Advocate for respondent no.2-B. ... PER COURT :- 1. Heard finally. 2. Appellant in the Appeal From Order (No. 151/2011) questions legality and propriety of the orders recorded below Exh.124, for setting aside abatement and bringing legal representatives of the deceased appellant in C.A.No.34/1992, dated 22nd Feb.,2011, by the learned District Judge, Nandurbar. The appellant also questions order dated 12.7.2011 recorded below Exh.135 in Civil Appeal No.34/1992 of the learned District Judge, Nandurbar whereby he has sent back the proceedings to the learned Civil Judge, Junior Division, to decide afresh RCS No.26/1972. 3. The chequered history of the litigation and the matters being taken to several Courts is demonstrated by the learned Senior Counsel. Shorn of the same, the short question that is required to be dealt with is, whether the learned Judge 4 AO NO.151/2011 was right in condoning delay of so called eight years to entertain the application to bring legal representatives moved on 23rd Jan.,2011, when Bhupendra expired on 16.3.2003. The reasons assigned in the application for setting aside the abatement illustrate that the appellant had approached this Court in Civil Revision Application No.256/2002 against the order dated 31st Oct.,2001. The said Civil Revision Application was allowed and the orders of the District Court were turned down. A Review Petition No.13393/2009 was preferred by the appellant herein in which this Court entertained stay to the proceedings and in between, Respondent no.2 Bhupendrabhai expired on 16th March, 2003. His legal heirs were brought on record in pending Review Petition by Appellants. Learned Counsel representing the respondent Bhupendrabhai before first appellate Court informed that since the matter was before the High Court, the respondent or any person on his behalf did not approach at the District Court and, consequently, he was unaware of death of Bhupendrabhai. It is pertinent that by CA No. 13382/2009, an application was moved by the appellant herein in Review Petition to bring the legal representatives of Bhupendrabhai on record which was acted by this Court by setting aside the abatement by order dt.30th Nov.,2010. The appellant in appeal before learned District 5 AO NO.151/2011 Judge, generated an impression that since in the Civil Application No.13382/2009, this Court has set aside the order of abatement consequently, there could not be any technical defect, another formal application to set aside the abatement was moved to bring legal representatives of deceased respondent Bhupendrabhai on record. 4. It is quite clear, this Court has already set aside the abatement in the continued proceedings between the same parties, therefore, the impression generated by respondent herein ( appellant in RCA No.34/1992), cannot be said to be illogical or not in tune with the record. Learned District Judge was made aware of all the events and even the legal position. The learned District Judge has rightly considered, the scenario of the matter and found that there was, indeed, no delay and, consequently, the abatement sought to be set aside was on technical aspects. 5. RCS No.26/1972 was dismissed by the learned Civil Judge, Senior Division, on 30th April, 1992, on a preliminary point that the plea of plaintiffs was hit by the provisions of Benami Transactions (Prohibition) Act, 1988. The learned Judge had framed issues below Exh.20 which were amended as per Exh.159 and on 1.7.1974, the learned Judge held that it had pecuniary jurisdiction. However, as stated 6 AO NO.151/2011 earlier, on 31st March, 1992, issue of bar of Benami Transaction was framed and it was heard as preliminary issue. Consequently, the learned Judge was pleased to dismiss the suit. Hence, the above referred appeal was preferred. 6. The position of law was explained by the Hon’ble Supreme Court (Full Bench) in the matter of R.Rajgopal v. Padmini (1995 (1) Mh.L.J. SC 544) and set aside the views expressed in earlier pronouncements, particularly in the matter of Mithilesh Kumari & Anr. Vs. Prem Behari Khare ( AIR 1989 SC 1247). Thus, provisions of Benami Transactions (Prohibition) Act, 1988, would not be retrospective. It would not operate against the plaintiff having filed the suit in 1972. 7. The learned District Judge, on analysis of the legal position, found that the plaint was filed in the year 1972 and, consequently, provisions of Section 4(1) of the Benami Transactions (Prohibition) Act are not applicable to such suits. This was certainly in tune to the legal position. 8. The suit was dismissed on a preliminary issue, the legal position being explained, the learned District Judge exercised powers vested in him in terms of Order 41 Rules 23 and 25 of Code of Civil Procedure which provide for remand of 7 AO NO.151/2011 the suit to the trial Court. The situation would have been different had it been a case of leading evidence in the Court of first instance and then remand was directed on certain issues. However, the case revolves to challenge to the preliminary issue and, consequently, since there was no evidence, the learned District Judge gave directions and remanded the matter to the Court of first instance. The learned District Judge, though discussed points of limitation, maintainability of the suit or litigation, gave a cautious note in paragraph No.23 that whatever observations he has made, were only to the limited purpose of deciding the issue of bar of Benami Transactions and the learned Judge seized with the matter shall deal with all the issues or controversies between the parties on its own merits. 9. The legal position to which reference is given by the learned Senior Counsel, in particular to the judgment of the Hon'ble Supreme Court in the matter of Balwant Singh Vs. Jagdish Singh & Ors. ( 2010 SAR (Civil) 722) has to be considered in the peculiar facts as was projected before the Hon'ble Supreme Court wherein, during the evidence, the death was known to the parties concerned. He deliberately went on with the matter and in the appellate Court he informed of the death. There were no sufficient grounds 8 AO NO.151/2011 found by the Hon'ble Supreme Court and, consequently, delay of 778 days in the said case was refused to be condoned. 10. It is again clarified, the learned Judge seized with the matter shall not be influenced by the orders of the learned District Judge on legal aspects or touching the facts of limitation. He will assess the position on evidence and come to a proper conclusion. 11. No substantial question of law needs to be formulated to address the contentions raised by the appellant. 12. Appeal From Order lacks merit, dismissed. The learned Judge shall expeditiously dispose of the pending Regular Civil Suit, considering its age and the parties are litigating since at least three decades. No costs. ( K.U. CHANDIWAL, J. ) ... agp/151-11ao