Case Note & Summary
The petitioners, heirs of the original plaintiff Ramsukh Mishrilal Jadiya, filed a writ petition challenging the order dated 23/12/2010 passed by the learned 4th District Judge, Amravati, which allowed the application filed by respondent no.2 (Exh.46) for dismissal of the appeal as abated. The original plaintiff along with his sisters had filed Small Cause Civil Suit No.189 of 2002 for ejectment and possession under Section 16(1)(g) and (i) of the Maharashtra Rent Control Act, 1999. The suit was dismissed by the Trial Court on 30/12/2003. The plaintiffs filed an appeal before the District Court. During the pendency of the appeal, the original plaintiff Ramsukh died on 16/07/2009. The petitioners (his heirs) filed an application for bringing legal representatives on record on 09/11/2009, which was beyond the 90-day limitation period. The application for condonation of delay was filed on 09/11/2009, i.e., 115 days after the death. The respondent no.2 filed Exh.46 for dismissal of the appeal as abated. The District Judge allowed the application and dismissed the appeal as abated. The High Court held that the District Judge was justified in dismissing the appeal as abated, as the petitioners failed to show sufficient cause for the delay. The writ petition was dismissed.
Headnote
A) Civil Procedure - Abatement of Appeal - Failure to bring legal representatives on record within limitation - Appeal filed by original plaintiff died during pendency of appeal - Petitioners (heirs) failed to apply for substitution within 90 days - Application for condonation of delay filed after 115 days - No sufficient cause shown - Held that the District Judge rightly dismissed the appeal as abated (Paras 1-6).
Issue of Consideration
Whether the learned District Judge was justified in dismissing the appeal as abated for failure to bring legal representatives on record within the prescribed period of limitation.
Final Decision
The writ petition is dismissed. The order dated 23/12/2010 passed by the learned 4th District Judge, Amravati, allowing the application (Exh.46) and dismissing the appeal as abated is upheld.
Law Points
- Abatement of appeal
- Condonation of delay
- Sufficient cause
- Legal representatives
- Limitation
Case Details
2011 LawText (BOM) (08) 114
Writ Petition No.1933 of 2011
Mr. S.V. Purohit for the petitioners, Mr. R.T. Anthony for the respondent no.2
Ramsukh s/o Mishrilal Jadiya (since deceased) through his legal representatives: Smt. Jamanabai Ramsukh Jadiya, Nandakishor Ramsukh Jadiya, Mohankumar Ramsukh Jadiya, Vijaykumar Ramsukh Jadiya, Mrs. Heeradevi w/o Omprakashji Soni, and others
Smt. Hangamabai wd/o Jawaharmal Jain, Mahendrakumar Jawaharmal Jain, Rajendrakumar Jawaharmal Jain, Sau. Chandabai w/o Premchandji Munot, Sau. Shantibai w/o Mahendrakumar Vora
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Nature of Litigation
Writ petition challenging the order of the District Judge dismissing the appeal as abated for failure to bring legal representatives on record within limitation.
Remedy Sought
The petitioners sought to set aside the order dated 23/12/2010 passed by the learned 4th District Judge, Amravati, which dismissed their appeal as abated.
Filing Reason
The original plaintiff Ramsukh died during the pendency of the appeal, and the petitioners (his heirs) failed to apply for substitution within the prescribed period of 90 days. The application for condonation of delay was filed after 115 days, and the District Judge found no sufficient cause for the delay.
Previous Decisions
The Trial Court dismissed the suit (Small Cause Civil Suit No.189 of 2002) on 30/12/2003. The appeal against that dismissal was pending before the District Court when the original plaintiff died.
Issues
Whether the District Judge was correct in holding that the appeal had abated due to failure to bring legal representatives on record within limitation.
Whether the petitioners showed sufficient cause for condonation of delay in filing the application for substitution.
Submissions/Arguments
The petitioners argued that the delay was not intentional and that they were pursuing the matter bonafide.
The respondent no.2 contended that the appeal had abated as the application for substitution was filed beyond the period of limitation and no sufficient cause was shown.
Ratio Decidendi
An appeal abates if the legal representatives of a deceased party are not brought on record within the prescribed period of limitation. The court may condone delay only if sufficient cause is shown. In this case, the petitioners failed to show sufficient cause for the delay of 115 days, and therefore the District Judge rightly dismissed the appeal as abated.
Judgment Excerpts
The above petition takes exception to the order dated 23/12/2010 passed by the learned 4th District Judge, Amravati, by which order the application filed by the respondent no.2 being Exh.46 for dismissal of the Appeal, as being abated, came to be allowed and the Appeal filed by the petitioners came to be dismissed as being abated.
The facts necessary to be cited for adjudication of the above petition can be stated thus...
In the said suit the respondents filed their written statement opposing the suit. The parties led evidence in support of their respective cases. The Trial Court on the consideration of the material on record dismissed the suit by its judgment and order dated 30/12/2003.
Procedural History
The original plaintiffs filed Small Cause Civil Suit No.189 of 2002 for ejectment and possession. The suit was dismissed on 30/12/2003. The plaintiffs filed an appeal before the District Court. During the appeal, original plaintiff Ramsukh died on 16/07/2009. The petitioners filed an application for substitution on 09/11/2009, beyond 90 days. The respondent no.2 filed Exh.46 for dismissal of the appeal as abated. The District Judge allowed the application on 23/12/2010. The petitioners filed the present writ petition challenging that order.
Acts & Sections
- Maharashtra Rent Control Act, 1999: Section 16(1)(g), Section 16(1)(i)
- Code of Civil Procedure, 1908 (CPC): Order 22 Rule 3, Order 22 Rule 4, Order 22 Rule 9, Section 5 of Limitation Act
