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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.8480 OF 2013

SURYEKANT MARUTI KOKATE THROUGH LRS PUSHPAMALA

SURYEKANT KOKATE AND OTHERS

..PETITIONERS

VERSUS

LAXMIKANT RAMCHANDRA THOMBRE

..RESPONDENT

…

Mr. Sujit Patil h/f Mr. V. D. Salunke, Advocate for

the Petitioners.

Mr. S. g. Chapalgaonkar, Advocate for sole

Respondent.

…

CORAM : S. V. GANGAPURWALA, J.

DATED : 14^th JANUARY, 2022.

PER COURT:-

1.

The respondent is original plaintiff. The

application Exhibit-5 before the Trial Court in

Regular Civil Suit No.154/2007 filed by plaintiff

is allowed and defendants are clamped with

injunction on 01.04.2008. The defendant no.1 it

appears died in the year 2010 and defendant no.4

died in the year 2009. The legal heirs it appears

are brought on record of defendant nos.1 and 4 with

the permission of the Court.

2.

The plaintiff claimed disobedience of the

order of injunction. As such, filed application

under Order 39 Rule 2-A of the Code of Civil

Procedure. However, in the application deceased

defendant nos.1 and 4 were arrayed. The plaintiff

filed application for adding names of the legal

heirs of deceased defendant nos.1 and 4 by filing

application for amendment Exhibit-15 in

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Miscellaneous Application No.30/2013 filed by the

plaintiff under Order 39 Rule 2-A of the C.P.C.

The said application is allowed. Aggrieved

thereby, the present petition.

3.

The learned counsel for petitioners

submits that, if the breach is committed by

defendants, then the legal heirs cannot be made

liable for the disobedience committed by the

deceased defendants. The learned counsel relies on

the order passed by the learned Single Judge of the

Calcutta High Court dated 28.08.2012 in C.O.

No.2382/2012.

4.

The learned counsel further submits that,

legal heirs of defendant no.1 were not brought on

record. He died in the year 2010. When penal

action is being sought to be taken, the legal heirs

cannot be made liable. In view of that, the order

impugned is erroneous and does not stand to reason.

5.

Mr. Chapalgaonkar, learned counsel for

respondent submits that, legal heirs of deceased

defendant nos.1 and 4 were brought on record in the

Suit. The disobedience alleged is of the year

2012. To be more precise, the disobedience alleged

is of incident dated 20.12.2012 (page no.30,

paragraph no.7).

Because of inadvertent

typographical error, the names of legal heirs were

not typed in the application and the names as per

original plaint and not amended plaint were typed.

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6.

I have considered the submissions

canvassed by the learned counsel for respective

parties.

7.

It appears from the certified copies on

record that, legal heirs of defendant no.1

SuryEkant were brought on record with the leave of

the Court dated 20.07.2010 and legal heirs of

defendant no.4 were brought on record as per the

leave of the Court dated 18.06.2009. The plaintiff

contends disobedience of the order of injunction

for incident of 20.12.2012. On the said date,

defendant nos.1 and 4 were dead and their legal

heirs were already brought on record in the plaint.

It appears to be a case of a typographical error

which has been rightly considered by the Trial

Court.

8.

However, at this stage, merits of the

contentions may not be gone into. It would be open

for petitioners to controvert the claim of the

plaintiff, so also it will be open for them to take

all the defences available to them, so also not

being liable for alleged disobedience and that

there is no disobedience on their part.

9.

Writ Petition is disposed of. No costs.

(S. V. GANGAPURWALA)

JUDGE

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Devendra/January-2022