Case Note & Summary
The appellants, original plaintiffs, filed a suit for cancellation of sale deed and permanent injunction, which was dismissed by the trial court. They appealed to the Appellate Court. During the pendency of the appeal, respondent No.4 died on 12/08/2011, but the appellants learned of his death only on 19/10/2013. They filed an application for bringing legal representatives on record without a separate prayer for condonation of delay. The Appellate Court rejected the application on 17/01/2014, holding it not maintainable, and subsequently passed an order that the appeal stood abated. The appellants filed a second appeal under Section 100 CPC. The respondents raised a preliminary objection that the appeal was not maintainable as an appeal under Order XLIII Rule 1(k) CPC was available against the order refusing to set aside abatement. The High Court, relying on the Supreme Court judgment in Madan Naik v. Mst. Hansubala Devi, held that the order rejecting the application for substitution was not appealable under Order XLIII Rule 1(k) as it did not decide the question of abatement. The High Court found that the Appellate Court erred in dismissing the application on technical grounds without considering the merits, as the application for substitution impliedly sought condonation of delay. The High Court set aside the orders of the Appellate Court and remanded the matter for fresh consideration of the application for bringing legal representatives on record, directing the Appellate Court to decide it on merits after giving an opportunity to the parties.
Headnote
A) Civil Procedure - Abatement of Appeal - Order XLIII Rule 1(k) CPC - Second Appeal - The Appellate Court rejected the application for bringing legal representatives of deceased respondent on record solely on the ground that no separate application for condonation of delay was filed, and consequently held the appeal as abated. The High Court held that the Appellate Court ought to have considered the application on merits and not dismissed it on technical grounds, as the application for substitution impliedly sought condonation of delay. The matter was remanded for fresh consideration. (Paras 1-7)
Issue of Consideration
Whether the Appellate Court was justified in rejecting the application for bringing legal representatives on record and holding the appeal as abated without considering the merits of the delay condonation application.
Final Decision
The High Court allowed the second appeal, set aside the orders of the Appellate Court dated 17/01/2014 and the order disposing of the appeal as abated, and remanded the matter to the Appellate Court for fresh consideration of the application for bringing legal representatives on record, to be decided on merits after hearing the parties.
Law Points
- Order XLIII Rule 1(k) CPC
- Section 100 CPC
- Abatement of appeal
- Condonation of delay
- Legal representatives
Case Details
2016 LawText (BOM) (04) 116
Second Appeal No.184 of 2014
Shri S. V. Sohoni for appellants, Shri H. R. Dhumale for respondent No.1, Shri S. K. Bhoyar for respondent Nos.2 and 3
Mahadeo s/o Champatrao Karluke and Nago s/o Champatrao Karluke
State of Maharashtra, Raju s/o Pundlikrao Telang, Vijay s/o Pundlikrao Telang, and Kalyanrao s/o Shankarrao Jadhav (deceased)
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Nature of Litigation
Second appeal against orders of Appellate Court rejecting application for bringing legal representatives on record and holding appeal as abated.
Remedy Sought
The appellants sought setting aside of the orders of the Appellate Court and restoration of the appeal.
Filing Reason
The Appellate Court rejected the application for substitution on the ground that no separate application for condonation of delay was filed, and consequently held the appeal as abated.
Previous Decisions
The trial court dismissed the suit on 19/04/2004. The Appellate Court rejected the substitution application on 17/01/2014 and passed order of abatement.
Issues
Whether the order rejecting the application for bringing legal representatives on record is appealable under Order XLIII Rule 1(k) CPC?
Whether the Appellate Court was justified in rejecting the substitution application without considering the merits and holding the appeal as abated?
Submissions/Arguments
Respondents argued that the appeal was not maintainable as an appeal under Order XLIII Rule 1(k) CPC was available against the order refusing to set aside abatement.
Appellants argued that the order rejecting substitution was not appealable under Order XLIII Rule 1(k) as it did not decide the question of abatement.
Ratio Decidendi
An order rejecting an application for bringing legal representatives on record without considering the merits and without deciding the question of abatement is not appealable under Order XLIII Rule 1(k) CPC. The Appellate Court should not dismiss such application on technical grounds but should consider it on merits, as the application for substitution impliedly seeks condonation of delay.
Judgment Excerpts
The Appellate Court rejected said application on the ground that simplicitor application for bringing on record the legal representatives of respondent No.4 without any prayer for condoning delay was not maintainable.
The order rejecting the application for bringing legal representatives on record is not an order under Order XLIII Rule 1(k) of the Code as the Appellate Court has not decided the question of abatement.
Procedural History
The appellants filed R.C.S. No.160 of 2003 for cancellation of sale deed and permanent injunction. The trial court dismissed the suit on 19/04/2004. The appellants filed Regular Civil Appeal No.160 of 2010. During pendency, respondent No.4 died on 12/08/2011. The appellants learned of his death on 19/10/2013 and filed an application for substitution. The Appellate Court rejected the application on 17/01/2014 and held the appeal abated. The appellants filed the present second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 100, Order XLIII Rule 1(k)
