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BOMBAY HIGH COURT
A.S. Chandurkar, J.
Mahadeo & Anr. —Appellants
versus
State of Maharashtra Through its
Collector, Wardha & Ors. —Respondents
Second Appeal No.184 of 2014
Decided on 25.4.2016
Counsel for the Parties:
For the Appellants:Shri S.V. Sohoni, Advocate
For the Respondent No.1: Shri H.R. Dhumale, Assistant Government Pleader
For the Respondent Nos.2 & 3:Shri S.K. Bhoyar, Advocate
IMPORTANT POINT
If delay in filing appeal is not condoned, second appeal under Section 100 of CPC would be maintainable.
Headnote:(A) Civil Procedure Code, 1908—Order 43 Rule 1(k)—Abatement of appeal—Remedy—Under provisions of Order 43 Rule 1(k) of Code, appeal is maintainable against order refusing to set aside abatement or dismissal of suit—Once such application filed under provisions of Order 22 Rule 9 of Code is rejected, remedy of appeal under provisions of Order 43 Rule 1(k) of Code would be available. (Para 5)
(b) Civil Procedure Code, 1908—Order 43 Rule 1(k) read with Section 100—Abatement of appeal—Remedy—If delay in filing appeal is not condoned, second appeal under Section 100 of Code would be maintainable—However, when Appellate Court refuses to set aside abatement under provisions of Order 22 Rule 9(2) of Code and rejects such application, remedy under provisions of Order 43 Rule 1(k) of Code would be available. (Para 6)
Result: Order accordingly.
A.S. Chandurkar, J.—This appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) is by the original plaintiffs who are aggrieved by the order passed by the Appellate Court rejecting the application that was filed for bringing on record the legal representatives of respondent No. 4. The appellants are also aggrieved by the order passed below Exhibit-1 by the Appellate Court disposing of the said appeal as having abated. The appellants-original plaintiffs had filed R.C.S. No. 160 of 2003 for cancellation of sale deed dated 20/04/2003 along with a prayer for permanent injunction. The trial Court dismissed the suit by judgment dated 19/04/2004. Being aggrieved, the plaintiffs filed Regular Civil Appeal No. 160 of 2010. During pendency of said appeal, the appellants learnt on 19/10/2013 the respondent No. 4 had expired on 12/08/2011. Hence, an application for bringing on record the legal representatives came to be filed. On 17/01/2014, the Appellate Court rejected said application on the ground that simlicitor application for bringing on record the legal representatives of respondent No.4 without any prayer for condoning delay was not maintainable. It therefore dismissed the said application. Thereafter a consequential order came to be passed that the appeal stood abated as the legal representatives of respondent No.4 were not brought on record. Being aggrieved by disposal of the appeal as having abated, the original plaintiffs have filed the present second appeal.
2. Shri S.K. Bhoyar, the learned counsel for respondent Nos. 2 and 3 at the outset raised a preliminary objection to the maintainability of appeal on the ground that the Appellate Court had refused to set aside the abatement of appeal against respondent No.4. Against said order, it was submitted that the remedy of appeal under provisions of Order XLIII Rule 1(k) of the Code was available. The learned counsel by placing reliance on the judgment of Honourable Supreme Court in Madan Naik (dead) by Lrs) and ors v. Mst. Hansubala Devi and ors., AIR 1983 Supreme Court 676. submitted that disposal of an appeal as having abated did not result in any decree being passed and therefore a second appeal against such adjudication was not maintainable.
3. Shri S.V. Sohoni, the learned counsel for the appellants submitted that as the appeal was disposed of as having abated, the only remedy available was by way of filing an appeal under Section 100 of the Code. He submitted that as the Appellate Court did not condone the delay in bringing on record the legal representatives of respondent No.4 and rejected said application, the present appeal was maintainable. The learned counsel placed reliance on the judgment of Honourable Supreme Court in 2005 (1) MhLJ Shyam Sunder Sarma v. Pannalal Jaiswal and ors. to urge that against an order passed by the Appellate Court refusing to condone delay, the remedy by way of second appeal was available.
4. Having heard the respective counsel for the parties, the following question requires determination :
“When the Appellate Court rejects an application for bringing on record the legal representatives of a deceased respondent and thereafter consequently disposes the appeal as having abated, whether a second appeal under Section 100 of the Code would be maintainable ?”
Certain facts are not in dispute. During the pendency of Regular Civil Appeal No. 160 of 2010, the appellants learnt about the death of respondent No. 4 and hence an application for bringing on record the legal representatives was filed on 13/11/2013 under the provisions of Order XXII Rule 4 of the Code. This application came to be rejected by the Appellate Court by order dated 17/01/2014. The prayers made by the appellants included a prayer for setting aside the abatement and for bringing on record the legal representatives. The respondent No.4 had expired on 12/08/2011 and therefore as his legal representatives were not brought on record within a per
