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2023 Supreme(Online)(Bom) 20105
BOMBAY HIGH COURT
M. S. SONAK, J
KALPA KASHINATH GADEKAR THR. HIS POA, KASHINATH L. GADEKAR – Appellant
Versus
TEREZA FERNANDES (DEC) – Respondent
MISC. CIVIL APPLICATION NO.90 OF 2020 | MISC. CIVIL APPLICATION NO.1936 OF 2021(F) | MISC. CIVIL APPLICATION NO. 2635 OF 2021 (F) | SECOND APPEAL NO. 140 OF 2012
For the Appellants/Petitioners: Mr Shivan Desai, Mr Nathan Vaz, Mr A. Sardessai, Ms M. Viegas
For the Respondents:Mr S.S. Kantak, Senior Advocate, Mr Abhijeet Kamat, Ms Neha Kholkar, Ms Saicha Desai
Abatement in civil appeals does not occur if a party's death leaves no heirs and substitution follows the correct procedural steps under CPC.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXII, Rules 3 and 4-A - Abatement of appeal - The appeal was deemed to have abated due to the death of the appellants without leaving behind legal representatives; however, the current applicant is substituted under Order XXII, Rule 10. (Paras 45-47)
(B) Legal representatives - The necessity of bringing legal representatives on record following the death of parties to ensure continuity of proceedings in accordance with procedural law. (Paras 18, 26)
Facts of the case:
The second appeal involved the distribution of property following the death of the original appellants, who died without heirs. The legal implications of their demise invoked various applications under CPC rules addressing the abatement and substitution in appeals.
Findings of Court:
The court ruled that while the original appellants had died, the appeal did not abate as Ramakant’s claims as an assignee were recognized, allowing substitution.
Issues: Key issues discussed include the application of CPC provisions regarding abatement and representatives in civil appeals, particularly centering on necessary legal actions following death.
Ratio Decidendi: The court emphasized that applications under the relevant CPC rules are paramount for the proper legal continuation of proceedings, especially where abatement and substitutions are concerned. The allowance of Ramakant as successor further clarifies procedural provisions under CPC, ensuring continuity in judicial proceedings.
Result: Misc. Civil Application No.90/2020 is dismissed. Misc. Civil Application No.1936/2021(F) is allowed and Ramakant is permitted to be substituted as the Appellant in Second Appeal No.140/2012 in place of deceased Tereza and Paul.
| Table of Content |
|---|
| 1. court observations on continuity of proceedings and legal representation. (Para 1 , 7 , 9) |
| 2. death of original appellants without heirs raised issues of abatement. (Para 3 , 4 , 5) |
| 3. arguments on necessity and effect of abatement under cpc. (Para 10 , 12) |
| 4. court's findings affirm legitimacy of substitution of parties. (Para 45 , 46 , 47) |
ORDER:-
1. Heard the learned Counsel for the parties.
2. By an order dated 7th September 2022, this Court had disposed of Misc Civil Applications No. 1936/2021(F), 2635/2021(F), and 90/2020 in Second Appeal No.140/2012. However, the order dated 7th September 2022 was reviewed by an order dated 17th November 2022. Accordingly, these three Misc. Civil Applications were restored and taken up for consideration afresh.
3. The factual background leading to the institution of the above three Misc. Civil Applications in Second Appeal No.140/2012 is summarized for the convenience of reference.
(a) The respondent filed Special Civil Suit No.26/1997 against Smt. Tereza Fernandes and Paul Fernandes seeking a decree of specific performance. The respondent-Kalpa raised a counterclaim and sought a declaration about the Agreement for Sale being null and void. During the pendency of this suit, Tereza and Paul sold this property to Ramakant Shetye vide a Sale Deed dated 16.08.2006.
(b) The respondent - Kalpa, instituted a separate suit bearing Special Civil Suit No.44/2006/A to challenge the Sale Deed dated 16.08.2006. This suit is still pending between the parties. On 27.08.2010, the Trial Court dismissed Special Civil Suit No.26/1997 but decreed the counterclaim and declared the Agreement for Sale null and void.
(c) The first appellate Court on 25.05.2012 allowed the Appeal, decreed the suit, and dismissed the counterclaim. Therefore, Tereza and Paul filed Second Appeal No.140/2012 before this Court, in which the order dated 07.09.2022, of which review was applied, came to be made. This Second Appeal was admitted on 10.07.2013.
(d) During the pendency of this Second Appeal, the Appellants Paul and Tereza expired on 23.02.2015 and 26.10.2019 in Mumbai. On 04.02.2020, the respondent - Kalpa, filed Misc. Civil Application No.90/2020 in Second Appeal No.140/2012 urging dismissal of the second Appeal as abated. In this application, Kalpa pleaded that both the Appellants have expired without leaving behind any heirs. Death certificates concerning both Appellants were enclosed along with this civil application.
(e) On 16.03.2020, Ramakant filed an application deleting the names of Tereza and Paul as respondents in Writ Petition No.1128/2019. Ramakant filed this Writ Petition to challenge an interim order made in Special Civil Suit No.44/2006/A. From this, it is apparent that Ramakant was aware of the demise of Tereza and Paul at least by 16.03.2020.
(f) On 17.09.2021, Ramakant filed Misc. Civil Application No.1936/2021(F) in Second Appeal No.140/2012, seeking inter alia his substitution in place of the deceased appellants Tereza and Paul, his addition as an Appellant, and for setting aside abatement. Any application for condonation of delay did not accompany this application.
(g) On 04.10.2021, Kalpa filed a response to oppose Misc. Civil Application No.1936/2021(F). She urged that the statement about the knowledge of the death of Tereza and Paul was false. On 11.10.2021, Ramakant filed an affidavit substantially accepting that the statement about knowledge of death was incorrect but explained the circumstances in which such a statement was made. Finally, on 14.12.2021, Ramakant filed Misc. Civil Application No.2635/2021(F) seeking condonation of delay in moving Misc. Civil application No.1936/2021.
4. Misc. Civil Application No.90/2020 is filed by Kalpa, the original Respondent in Second Appeal No.140/2012. In this application, Kalpa prays that Second Appeal No.140/2012 be dismissed as abated based upon the following submissions in paragraphs 3, 4, and 5 of the application :
"3. The first appellant expired i
