2402mca66.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

MISC. CIVIL APPLICATION No. 66/2012

IN SECOND APPEAL NO. 106/2010.

Gangadhar Domaji Varade (Dead) through Lrs. Diwakar G. Varade and others.

-VERSUS-

Damodhar Raghoji Varhade and others.

_______________________________________________________________________

Office Notes, Office Memoramda of Coram,

appearances, Court's orders of directions

Court's or Judge's orders.

and Registrar's Orders.

______________________________________________________________________________

CORAM : B.P. DHARMADHIKARI, J.

DATED : FEBRUARY 24, 2012.

Heard Shri S.P. Kshirsagar, learned

Counsel for the applicant.

He has tendered a Pursis in which date of

death of respondent no.3 – Ramaji is disclosed as

21.04.2002; of respondent no.13 Gunderao as

26.02.2003 and of respondent no.5 Suryabhan as

19.05.2010.

Civil Suit No. 93/2000 was instituted by

the present review applicant and it has been also

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dismissed on 15.02.2007 on the ground of non-joinder

of necessary parties. In Appeal that dismissal has been

maintained and Second Appeal No.106/2010 has been

dismissed by me on 03.10.2011 on the same ground.

Review is sought by placing reliance upon

provisions of Order XXII Rule 4(4) of the Code of Civil

Procedure and judgment of Hon'ble Apex Court

reported at 2003[2] Civil LJ 267 (Achaldas Durgaji

Oswal (dead) through L.Rs. .vrs. Ramvilas Gangabisan

Head (dead) through L.Rs. and others). Attention is

also invited to mention by the trial Court that

defendant nos. 1 to 9 closed their evidence by filing a

Pursis at Exh.208.

The judgment of Hon'ble Apex Court shows

that the plaintiff is exempted from substituting legal

representatives of the deceased defendant, when such

defendant failed to file written statement or then after

filing it, it failed to appear and contest the suit at

hearing. That is not the position in the present

matter. Why the defendants who were alive, choose

note to tender any evidence, cannot be debated at this

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stage. Admittedly these defendants had filed written

statement before their death. The suit has been

dismissed after the death of respondent nos. 3 and 13.

In this situation, I find that no case is made

out warranting any review. Misc. Civil Application is

thus, rejected.

However, in the facts and

circumstances of the case there shall be no order as to

costs.

JUDGE

Rgd