Manoramabai and Ors.
Vs. Municipal Council and ANR. [2008] INSC 1950 (14 November 2008)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO. 6685 OF 2008 [Arising out of SLP(C) No.2379/2007]
MANORAMABAI & ORS. .......APPELLANT(S) Versus ORDER Delay condoned.
1.
Leave
granted. Heard learned counsel for the parties.
2.
The
first respondent Municipal Council, filed a suit for ejectment against three
defendants (Shamrao, Dayaram and second respondent). The trial Court decreed
the suit. The first defendant filed an appeal and during the pendency of the
appeal he died and his seven LRs were brought on record. The first Appellate
Court rejected the appeal on 20.2.1993. Aggrieved by the rejection, the LRs of
the first defendant filed a second appeal (SA No.92/1993) before the High Court
of Bombay. The second appeal was admitted and was pending for more than a
decade. No dates of hearing were being given. One of the LRs of the first
defendant, namely appellant No.3 before the High Court (Dadasao Shamrao Saoji),
died in the year 1996. An application for setting aside the abatement with an
application for condonation of delay and an application for bringing LRs of the
deceased third appellant were filed in the year 2003. The High Court rejected
the applications on .......2.
-2- 27.7.2005 as it
was not satisfied with the reasons assigned for condoning the delay.
3.
Thereafter,
the plaintiff (first respondent) filed an application for dismissal of the
second appeal on the ground that the appeal having abated in respect of third
appellant should be deemed to have abated in regard to all the appellants. The
High Court accepted the said contention and dismissed the appeal on 13.12.2006.
Feeling aggrieved, the appellants in the second appeal have filed this appeal
by special leave challenging the orders dated 27.7.2005 and 13.12.2006.
4.
It
is evident from the applications filed by the appellant for setting aside the
abatement and for bringing the LRs of the third appellant on record, that the
other appellants were under the bonafide impression that it was not necessary
to bring the LRs of third appellant on record as the other LRs of the deceased
first defendant were already on record.
5.
The
principles relating to condonation of delay and setting aside abatement for
bringing LRs of a deceased party on record in a pending second appeal before
the High Court where the second appeal has been admitted but no dates of
hearing were fixed, have been stated by this Court in Perumon ........3.
-3- Reference can
also be made in this behalf in Ram Nath Sao @ Ram Nath Sahu & Ors. becomes
evident that the delay ought to have be condoned and the application for
setting aside abatement ought to have been allowed and the LRs of the third
appellant ought to have been brought on record. Accordingly, the order dated
27.7.2005 is set aside and the three applications allowed. The delay is
condoned. Abatement is set aside. The appellants are permitted to bring the LRs
of deceased third respondent on record. As a consequence, the order dated
13.12.2006 is also set aside.
6.
We
allow this appeal, accordingly. We request the High Court to expedite the
hearing of the appeal which has stood restored to its file as consequence of
our order and endeavour to dispose it of within six months.
...........................J.
( R.V. RAVEENDRAN )
...........................J.
New
Delhi;
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