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Judgment
A.P. Lavande, J.—Rule, made returnable forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioner challenges order dated 10/6/2008 and three orders dated 2/8/2008 passed by the learned Civil Judge, Junior Division, Bicholim, in Regular Civil Suit No. 81/99/B.
Respondent No. 1 filed the above suit seeking relief of declaration that sale deed dated 9/8/1999 executed by the Defendants was null and void and also sought permanent injunction against the Defendants from disposing of property bearing survey Nos. 38/1 and 39/1 of village Maulinguem of Bicholim Taluka. The suit was filed against the Petitioner herein and the Respondent Nos. 2 to 19.
On 25/3/2008, the Petitioner who is Defendant No. 1 in the said suit filed an application that Shri Nanasaheb Anasheb Prabhu Desai, the (Defendant No. 9, actually Defendant No. 11 in the suit) had expired in the year 2006 but his heirs were not brought on record and as such, the suit be declared as abated. The Plaintiff opposed 4 the said application by reply dated 15/7/2008.
On 10/4/2008, the Plaintiff filed an application seeking to bring legal representatives of Nanasaheb Prabhu Desai (Defendant No. 11 on record). The said application was opposed on behalf of Defendant No. 1. However, by order dated 10/6/2008, the trial Judge allowed the said application and directed the Plaintiff to amend the cause title which was accordingly done. Thereafter, on 12/4/2008, Defendant No. 1 filed a detailed application seeking dismissal of the suit as abated on the ground that no application for condonation of delay and setting aside abatement of the suit in view of death of Defendant No. 11 was filed by the Plaintiff. By order dated 2/8/2008, the trial Judge dismissed the said application. The Defendant No. 1 filed another application dated 15/7/2008 for correcting the earlier orders and Order dated 10/6/2008. On 2/8/2008 the trial Judge also dismissed the application dated 15/7/2008 as well as earlier application dated 25.3.2008. The Petitioner by filing the present petition has challenged order dated 10/6/2008 and the three orders dated 2/8/2008 passed by the trial Judge.
Mr. Ramani, learned Counsel appearing for the Petitioner (original Defendant No. 1) submitted that the finding given by the learned trial Judge that Order XXII Rule 10 A is attracted is clearly unsustainable in law in as much as Defendant No. 11 was ex parte in the suit and the advocate appearing for Defendant No. 1 did not represent Defendant No. 11. Mr. Ramani further submitted that in case of death of a Defendant, the period of limitation for brining legal representatives on record and also for setting aside abatement starts from the date of the death and not from the date of knowledge, by placing reliance on judgment of this Court in the case of Santosh Boro and Others Vs. State of Meghalaya, . Mr. Ramani, therefore submitted that in view of the fact that no application was filed by the Plaintiff for setting aside abatement and condonation of delay in bringing the legal representatives of Defendant No. 11 before the trial Court, the entire suit stood abated since the suit was primarily for declaration and consequential injunction.
Mr. Bhobe, fairly conceded that the Plaintiff ought to have filed application for setting aside abatement and condonation of delay in bringing the legal representatives of Defendant No. 11 on record. He further submitted that in the event the writ petition is allowed serious prejudice would be caused to the Respondent No. 1/Plaintiff and therefore, liberty be given to Respondent No. 1 to file an application for setting aside abatement and for condonation of delay.
I have considered the rival submissions and perused the record.
Mr. Ramani is right in contending that the Plaintiff ought to have filed an application for setting aside abatement and for condonation of delay in brining the legal representatives of Defendant No. 11 on record. The issue is squarely covered in favour of the Petitioner in view of the judgment of this Court in the case of Mr. Anthony D''Sa (supra), relied upon by Mr. Ramani. The period of limitation for bringing legal representatives on record and also for setting aside abatement starts from the date of the death in terms of Article 120 of the Schedule to Limitation Act 1963. Therefore, the trial Court has committed a serious error in allowing the application dated 10/4/2008 filed by the Plaintiff for brining the legal representatives of Defendant No. 11 on record without an application for setting aside abatement and condonation of delay in filing the application by the Plaintiff, which was mandatory. However, I find merit in the submission of Mr. Bhobe that in the event the impugned orders are set aside without giving liberty to Respondent No. 1/Plaintiff to file an application for setting aside abatement and for condonation of delay serious prejudice would be caused to the Plaintiff. Therefore, in the peculiar circumstances of the case, in my considered opinion, liberty sought for by Mr. Bhobe deserves to be granted.
In view of the above discussion, order dated 10/6/2008 and all the three orders dated 2/8/2008 passed by the learned trial Judge in Regular Civil Suit No. 81/99/B are quashed and set aside. However, liberty is granted to Respondent No. 1/Plaintiff to file an application seeking condonation of delay and for setting aside abatement within a period of six weeks from today. If such an application is filed, the learned trial Judge shall decide the same on its own merits after giving an opportunity of being heard to the parties. In case no application is filed, the suit shall stand abated.
Rule is made absolute in the aforesaid terms with costs of Rs. 1500/-(Rupees One thousand five hundred only) payable to the Petitioner. The costs shall be deposited in the trial Court at the time of filing of the application seeking condonation of delay and for setting aside abatement. If costs are deposited, liberty to the Petitioner/Defendant No. 1 to withdraw the same.
Interim order dated 11/9/2008 stands vacated. Parties either personally or through their advocates shall appear before the trial Court on 22/12/2010 at 10.a.m.