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2012 Supreme(Bom) 2118
High Court of Judicature at Bombay
RANJIT MORE, J.
Baburao Ganpatrao Shirole & Others
Versus
Deccan Education Society & Others
Writ Petition Nos. 5822 of 2012, 5828 of 2012 & 5829 of 2012, 4179 of 2012, 4180 of 2012 & 4181 of 2012
Decided on : 05-11-2012
For the Petitioners:V.A. Thorat, learned senior counsel i/b. Purushottam G. Chavan, Advocates.
For the Respondents:R1, A.A. Kumbhakoni i/b. R.M. Pethe, Advocates.
Headnote:Civil Procedure Code, 1908 - Order XXII - Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947, Section 13 - Abatement of suit.
Where there was no dispute as to entitlement of recovery of possession of suit property amongst co-owners therefore death of one of co-owners would not result in abatement of suit. - There is no dispute as to entitlement of recovery of possession of suit property amongst co-owners. Therefore death of one of co-owners would not result in abatement. Court can continue with rest of co-owners/plaintiffs especially when suit is pending adjudication before trial Court and rights of parties are not crystallized. Things would be different in case of abatement of appeal.
If during pendency of appeal, appeal is abetted against some of appellants or respondents and trial Courts decree is joint and indivisible, same stands confirmed so far as these appellants or respondents are concerned and therefore appeal could not be proceeded with against rest of respondents as it would, in event of success result in conflicting decrees and entire appeal abates. Abatement of suit and abatement of appeal are two different things.
Civil Procedure Code, 1908 - Order XXII - Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947, Section 13 - Suit for recovery of possession.
Applications of bringing legal heirs of plaintiff on record made under Order XXII, Rule 3 of CPC, cannot be rejected merely because it is filed under wrong provision. - Applications are made by legal heirs of plaintiff who have expired and not by plaintiffs. Legal heirs of deceased plaintiffs could have applied under Order I, Rule 10 for adding themselves as parties. Though applications are made under Order XXII, Rule 3, they cannot be rejected merely because it is shown to have filed under wrong provision. Courts have ample power to consider applications under Order I, Rule 10. Submission that since there is specific provision under Order XXII, party cannot resort to provisions of Order I, Rule 10. Submission cannot be accepted as it was contended that application under Order XXII for bringing legal heirs of plaintiff on record are required to be filed only when cause of action does not survive to surviving plaintiffs.
LIMITATION ACT, 1963 - Section 5 - Civil Procedure Code, 1908, Order XXII - Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, Section 13 - Limitation for suit for recovery of possession.
Where sufficient cause for delay in filing application for setting aside abatement of suit was shown by legal heirs of plaintiff therefore delay liable to be condoned. - Courts are required to adopt liberal approach while acceptance of ’sufficient cause’ and normally explanation should be accepted as Rule and rejection thereof should be in exceptional cases.
Words ’sufficient cause’ in Section 5 of Limitation Act should receive liberal construction so as to advance substantial justice, when delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on part of appellant. Courts while dealing with this kind of application will have to keep in mind that valuable right accrues to legal representatives of deceased respondent when appeal abates. In this case defendant No. 1 cannot claim that valuable rights have accrued in its favour by demise of some of plaintiffs and failure to bring their legal representatives on record. Delay is liable to be condoned.
Rule. Rule is made returnable forthwith. By consent of the parties, the matter is taken up for final hearing.
2. Heard Mr. Thorat, learned senior counsel and Mr. Kumbhakoni, learned counsel for the respective parties.
3. Since all these petitions arise out of various orders passed in a single suit and parties to the suit are being same, I propose to dispose of these writ petitions by passing this common order.
4. Writ Petition Nos. 5822, 5828 & 5829 of 2012 arises out of trial court’s order rejecting the applications for bringing legal heirs of deceased plaintiff Nos. 2, 3, 8 & 9 on record. Writ Petition Nos. 4180 and 4181 of 2012 arises out of an order, whereby the legal heirs of deceased plaintiff Nos. 7 and plaintiff Nos. 10 and 12 are allowed to be brought on record. Writ Petition No. 4179 of 2012 arises out of an order of rejection of an application filed by defendant No.1 for dismissing the entire suit as abated.
5. For convenience, the parties to the petitions are referred by their original nomenclature in the suit. The dispute is about a property bearing Survey Nos.82, 117, 224 and 225 total admeasuring about 36 Acres 36 Gunthas situated within the registration Sub-District, Taluka – Havili, District-Pune and within the limits of Pune Municipal Corporation at Bhamburda, Shivaji Nagar, Pune (hereinafter for the sake of brevity called as “the suit property”). Shri Rajaram Naroji Shirole, Shri Shyamrao Rajaram Patil-Shirole, Shri Bhagwantrao Rajaram Patil-Shirole and Shri Ganpatrao Rajaram Patil-Shirole are the original owners of the suit property. The said original owners have expired and their successors-in-interest, twenty-five in number, have filed Regular Civil Suit No.381 of 1992 in Small Causes Court at Pune for recovery of possession of the suit property along with arrears of rent and mesne profits against the defendants. It is the case of the plaintiffs that the original owners entered into registered indenture of lease in favour on defendant No.1-Society/Trust for the period of 99 years commencing from 1st July, 1891 for agreed yearly rent of Rs.570/-. The lease period expired by efflux of time on 30th June, 1990. The plaintiffs after exchange of notices and correspondence and in view of their alleged entitlement to recover the possession of the suit property on the grounds mentioned under Section 13(1)(i), 13 (1)(e) and 13 (1)(k) of the Bombay Rents Act 1947 filed a suit for possession of the suit property. During the pendency of the suit, various interim orders are passed by the trial court. These orders are carried up to Apex Court and the Apex Court ultimately directed the trial court to expedite the suit within time bound period viz. within 30th April, 2013.
During the pendency of the suit, the following plaintiffs expired:
Plaintiff No.2 -15th December, 2012
Plaintiff No.3 -21st August, 2008
Plaintiff No.7 -19th November, 1995 Plaintiff No.8 -28th January, 2008
Plaintiff No.9 -4th March, 2003
Plaintiff No.10 -15th January, 1999
Plaintiff No.12 -23rd January, 2002
The legal heirs of these plaintiffs thereafter filed various applications for bringing themselves on record. The applications of legal heirs of deceased plaintiff Nos. 2 & 3 were rejected by common order and the applications of the legal heirs of deceased plaintiff Nos. 8 & 9 were rejected by separate orders. The legal heirs of the deceased plaintiffs as stated above thereafter have filed Writ Petition Nos.5822, 5828 and 5829 of 2012 respectively. The application of the legal heirs of deceased plaintiff No.7 was allowed and, therefore, this order is challenged by defendant No.1 by filing Writ Petition No.4180 of 2012. The applications of legal heirs of deceased plaintiff Nos. 10 & 12 were also allowed by a common order and, therefore, defendant No.1 has challenged this common order by filing Writ Petition No.4181 of 2012. Defendant No.1 also filed an application at Exhibit 216 for dismissing the suit as abated, which application was als
