Advocates:
['GAURI GODSE', 'SHRI P M VYAS', '', '', 'SMITA SHETKAR']

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPLICATION NO. 255 OF 2004

IN

SECOND APPEAL NO. 357 OF 1996

Ramdas Sattur ... Appellant

V/s.

Rameshchandra Shah and Ors. ... Respondents

Shri A.A.Kumbhakoni with Ms Gauri Godse for Applicant

Shri P.M.Vyas for Respondent nos. 1 and 2

Mrs.Anjali Helekar for Mrs.Smita Shetkar for Respondent

nos 5 to 7.

CORAM:S.R.SATHE,J.

DATED:25th April 2006

P.C.:-

1. The applicant, original defendant no.3 in Special

Civil Suit No.42 of 1981 and Appellant in Second Appeal

No.357 of 1986 has filed this application seeking

amendment to cause title of second appeal for showing the

Respondent no.3 as deceased represented through the

Respondent nos. 5, 6, 7 and applicant.

2. The applicant has stated in his application that by

virtue of order dated 20-3-1987 the second appeal against

Respondent nos.3 and 6 was dismissed. Respondent no.3

died on 30-1-1993 leaving behind applicant and Respondent

nos. 5 to 7 as her legal representatives. Thus the legal

representatives of deceased Respondent no.3 are already on

record in different capacities and hence there is no

question of abatement of the aforesaid appeal as against

deceased Respondent no.3. The applicant has therefore

filed the present application for amendment to bring the

legal heirs of deceased Respondent no.3 on record.

3. The Respondent filed affidavit in reply and opposed

the application. It is the contention of the Respondent

nos.1 and 2 that Respondent no.3 died on 30-1-1993.

Though, the appeal against her was dismissed on 20-3-1987

the said order was never set aside and the decree passed

against her attained finality. Besides this, the present

appeal was dismissed on 11-7-2002 by this court

(Coram:A.M.Khanwilkar,J) on the ground that the decree

passed was indivisible. However, the said order has been

recalled by the said Court and as such it can be reheard

only against Respondent nos.1 and 2 and applicant is not

entitled to make any improvement in the said position and

the present application is filed to fill up the lacunas in

the case.

4. The learned Advocate for the applicant/appellant

strenuously argued before me that in the instant case the

heirs of Respondent no.3 are already on record and they

are only to be shown as legal representatives of deceased

Respondent no.3. In support of this argument she has

drawn my attention to several rulings such as :

1.(1981) 2 SCC 788 Rafiq and Anr V/s Munshilal and Anr

1.(1981) 2 SCC 788 Rafiq and Anr V/s Munshilal and Anr

1.(1981) 2 SCC 788 Rafiq and Anr V/s Munshilal and Anr

2.(1997) 2 SCC 299= Beharilal and Anr. Bhuridevi(Smt)

2.(1997) 2 SCC 299= Beharilal and Anr. Bhuridevi(Smt)

2.(1997) 2 SCC 299= Beharilal and Anr. Bhuridevi(Smt)

and Ors.

and Ors.

and Ors.

3. 1971(1) SCC 265 Mahabir Prasad V/s Jage Ram and Ors.

3. 1971(1) SCC 265 Mahabir Prasad V/s Jage Ram and Ors.

3. 1971(1) SCC 265 Mahabir Prasad V/s Jage Ram and Ors.

4. (1982) 2 SCC 456 Shafiqur Rehman Khan and Anr V/s

4. (1982) 2 SCC 456 Shafiqur Rehman Khan and Anr V/s

4. (1982) 2 SCC 456 Shafiqur Rehman Khan and Anr V/s

Smt.Mohammad Jahan Begum and Ors.