Case Note & Summary
The petitioner, defendant in a pending civil suit, challenged the trial court's order dated 8.2.2012 condoning delay and allowing substitution of the respondent as plaintiff in place of the deceased original plaintiff Jagannath Mate. The original plaintiff died on 19.12.2010. The respondent claimed to be a legatee under a Will executed by the deceased and filed applications (Exhs. 43 and 44) for condonation of delay and substitution, stating he discovered the Will on 9.7.2011. The petitioner opposed, alleging the Will was bogus and that only legal heirs could be substituted. The trial court, considering that the right to sue survives and the validity of the Will is a triable issue, condoned delay and directed substitution. The High Court upheld the order, finding no error in the trial court's exercise of discretion, and dismissed the writ petition.
Headnote
A) Civil Procedure - Condonation of Delay and Setting Aside Abatement - Order 22 Rule 9 CPC, Section 5 Limitation Act, 1963 - Legatee under Will - The trial court condoned delay and set aside abatement to allow substitution of the applicant as plaintiff, holding that the right to sue survives and the validity of the Will can be decided at trial - Held that the trial court's discretion was properly exercised and no interference warranted (Paras 2-4).
Issue of Consideration
Whether the trial court was justified in condoning delay and allowing substitution of the applicant as plaintiff in place of the deceased plaintiff based on an alleged Will, despite the defendant's challenge to the Will's validity.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order condoning delay and allowing substitution of the respondent as plaintiff in place of the deceased plaintiff.
Law Points
- Condonation of delay
- setting aside abatement
- substitution of legal representative
- legatee under Will
- right to sue survives
- Order 22 Rule 9 CPC
- Section 5 of Limitation Act
- 1963
Case Details
2013 LawText (BOM) (07) 159
Writ Petition No.1217 of 2012
Mr. R.S. Sirpurkar for petitioner, Mr. R.R. Vyas for respondent
Smt. Suman s/o. Ganpati Chothale
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Nature of Litigation
Civil writ petition challenging an order condoning delay and allowing substitution of a legatee as plaintiff in a pending civil suit.
Remedy Sought
The petitioner (defendant in the suit) sought to quash the trial court's order dated 8.2.2012 allowing substitution of the respondent as plaintiff.
Filing Reason
The petitioner challenged the trial court's order on the ground that the alleged Will was bogus and that only legal heirs could be substituted.
Previous Decisions
The trial court (Civil Judge, Jr.Dn., Gondpipri) passed the order dated 8.2.2012 condoning delay and allowing substitution.
Issues
Whether the trial court was justified in condoning delay and allowing substitution of the applicant as plaintiff based on an alleged Will.
Whether the validity of the Will can be decided at the stage of substitution or should be left for trial.
Submissions/Arguments
Petitioner argued that the Will was bogus and that only legal heirs of the deceased could be substituted.
Respondent contended that he was a legatee under the Will and that the right to sue survives, and the delay was due to late discovery of the Will.
Ratio Decidendi
The trial court's discretion to condone delay and set aside abatement under Order 22 Rule 9 CPC read with Section 5 of the Limitation Act, 1963, should not be interfered with if the right to sue survives and the validity of the Will is a triable issue that can be decided at trial.
Judgment Excerpts
The trial Court, considering the interest of justice and the issue raised regarding validity of the alleged will purportedly executed by Jagannath Mate (deceased plaintiff) as also finding that the right to sue would survive, condoned delay and directed the applicant to be included in the place of deceased plaintiff setting aside abatement.
In the result, the petition is dismissed.
Procedural History
The original plaintiff Jagannath Mate filed Regular Civil Suit No.65 of 2009 (old No.223 of 2008) against the petitioner. Jagannath died on 19.12.2010. The respondent filed applications Exhs. 43 and 44 for condonation of delay and substitution as legatee under a Will. The trial court allowed the applications on 8.2.2012. The petitioner challenged this order by filing Writ Petition No.1217 of 2012 in the High Court, which was dismissed on 23.7.2013.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 22 Rule 9
- Limitation Act, 1963: Section 5
