Case Note & Summary
The appellant, Dr. Kiran Ajaykumar Agrawal, filed two second appeals (SA 471/2008 and SA 473/2008) in the Bombay High Court, Nagpur Bench, challenging the judgment and order dated 04/12/2008 passed by the District Judge No.1, Yavatmal in MJC No.20/1999 and MJC No.21/1999. Those MJCs had been dismissed as abated. The MJCs arose out of a judgment in Revision No.22/1997 decided on 30/01/1999 by the Joint Charity Commissioner, Nagpur, which itself arose from an order dated 12/07/1978 passed by the Assistant Charity Commissioner, Yavatmal in Appeal No.59/1997 under Section 70 of the Maharashtra Public Trusts Act, 1950. The original proceedings involved an inquiry under the Act. During the pendency of the second appeals, respondent No.1, Dr. Vasant Madhavrao Peshwe, died. The appellant did not take steps to bring the legal representatives of the deceased respondent on record within the prescribed period of limitation. Consequently, the appeals against respondent No.1 abated. The court noted that since respondent No.1 was a necessary party, the entire appeal abated. The court also examined whether any substantial question of law arose under Section 100 CPC. The court found that the appellant had not raised any substantial question of law and the appeals were devoid of merit. Accordingly, both second appeals were dismissed with no order as to costs.
Headnote
A) Civil Procedure - Abatement of Appeal - Order 22 Rule 9 CPC - Limitation - The appellant failed to bring legal representatives of the deceased respondent on record within the prescribed period of limitation, resulting in abatement of the appeal. The court held that the appeal against the deceased respondent abates and consequently the entire appeal is dismissed as no effective decree can be passed in the absence of necessary parties. (Paras 4-6)
B) Charity Law - Appeal under Section 70 of Maharashtra Public Trusts Act, 1950 - Second Appeal - Substantial Question of Law - The second appeals arose from orders dismissing MJCs as abated, which were filed against the judgment of the Joint Charity Commissioner. The High Court found that no substantial question of law arose for consideration as the appellant did not challenge the abatement order on merits and the appeals were dismissed. (Paras 2-3, 7)
Issue of Consideration
Whether the appeals filed by the appellant are liable to be dismissed as abated due to failure to bring legal representatives of the deceased respondent on record within the period of limitation, and whether any substantial question of law arises in the second appeals.
Final Decision
Both Second Appeal No. 471/2008 and Second Appeal No. 473/2008 are dismissed. No order as to costs.
Law Points
- Abatement of appeal
- Limitation for bringing legal representatives
- Substantial question of law under Section 100 CPC
- Order 22 Rule 9 CPC
- Section 70 of Maharashtra Public Trusts Act
- 1950
Case Details
2023 LawText (BOM) (01) 335
Second Appeal No. 471/2008 and Second Appeal No. 473/2008
Dr. Kiran Ajaykumar Agrawal
Dr. Vasant Madhavrao Peshwe (deleted), Prakash D. Chopda, The Joint Charity Commissioner, Nagpur
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Nature of Litigation
Second appeals against dismissal of MJCs as abated, arising from charity trust proceedings under the Maharashtra Public Trusts Act, 1950.
Remedy Sought
The appellant sought to set aside the judgment and order dated 04/12/2008 passed by the District Judge, Yavatmal dismissing MJC No.20/1999 and MJC No.21/1999 as abated.
Filing Reason
The appellant was aggrieved by the dismissal of the MJCs as abated, which were filed against the judgment of the Joint Charity Commissioner, Nagpur in Revision No.22/1997.
Previous Decisions
The Assistant Charity Commissioner, Yavatmal passed a common order in Inquiry Case No.143/1994 and 773/1994 on 26/08/1997. Against that, an appeal under Section 70 was filed, which was decided on 12/07/1978 (likely a typo, should be 1997?). The Joint Charity Commissioner decided Revision No.22/1997 on 30/01/1999. The District Judge dismissed MJC No.20/1999 and MJC No.21/1999 as abated on 04/12/2008.
Issues
Whether the second appeals are liable to be dismissed as abated due to failure to bring legal representatives of the deceased respondent on record within limitation.
Whether any substantial question of law arises in the second appeals under Section 100 CPC.
Submissions/Arguments
The appellant argued that the appeals should be heard on merits.
The respondents contended that the appeals have abated due to the death of respondent No.1 and failure to bring LRs on record.
Ratio Decidendi
The appeal against a deceased respondent abates if legal representatives are not brought on record within limitation, and if the deceased respondent is a necessary party, the entire appeal abates. Further, no substantial question of law arises in the second appeals as the appellant failed to challenge the abatement order on merits.
Judgment Excerpts
The present appeals are filed by the appellant being aggrieved by the judgment and order passed by District Judge No.1, Yavatmal in M.J.C. No.20/1999 and MJC No.21/1999 decided on 04/12/2008 dismissing the M.J.C. as abated.
This Court framed substantial question of law.
The appeals against respondent No.1 abated as the appellant failed to bring legal representatives on record within limitation.
Procedural History
The Assistant Charity Commissioner, Yavatmal passed a common order in Inquiry Case No.143/1994 and 773/1994 on 26/08/1997. Against that, an appeal under Section 70 of the Maharashtra Public Trusts Act was filed, which was decided on 12/07/1978 (likely a typo, should be 1997?). The Joint Charity Commissioner, Nagpur decided Revision No.22/1997 on 30/01/1999. The appellant filed MJC No.20/1999 and MJC No.21/1999 before the District Judge, Yavatmal, which were dismissed as abated on 04/12/2008. Against that, the appellant filed the present second appeals in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 100, Order 22 Rule 9
- Maharashtra Public Trusts Act, 1950: Section 70
