Hanumandas Jagannath Kabra Died Thr His Lrs Devkanya Hanumandas Kabra And ORS v. Satyanarayan Jagannath Kabra Died Through L.Rs. Kamlabai Satyanarayan Kabra And Other

- 1 - ao23.21.odt

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD APPEAL FROM ORDER NO. 23 OF 2021 Hanumandas Jagannath Kabra (Deceased through LRs) Appellants

Versus

Satyanarayan Jagannath Kabra (Deceased through LRs) & others Respondents Mr. V. D. Patnurkar, Advocate for the appellants. Mr. R. R. Sancheti, Advocate for respondents No. 1-1 to1-3. Mr. R. H. Jobanputra, Advocate for respondents No. 2/1 and 2/2. CORAM : R. M. JOSHI, J.

DATE : 17th APRIL, 2023.

PER COURT :

1.

This appeal from order takes exception to the order dated 4th February, 2020 passed in Regular Civil Appeal No. 8/2019 whereby the matter was remanded back to the Trial Court for consideration of application for condonation of delay caused in fling the application for setting aside abatement and bringing legal heirs of deceased defendant No. 2 on record and also for consideration of application for amendment of the suit.

2.

Perusal of Order 22 Rule 4 of the Code of Civil Procedure provides that where a defendant dies and the right to sue survives,

- 2 - ao23.21.odt the legal representatives of such defendant ought to be brought on record. Here in this case, having regard to the nature of proceeding, it cannot be said that the right to sue against deceased defendant No. 2 has not survived. Rule 4(4) of Order 22 of the Code of Civil Procedure only provides that exemption may be given to the plaintiff from substituting the legal representatives of defendant, who though fled written statement but failed to appear and contest the suit. This provision enables the plaintiff not to take steps to bring legal representatives of such defendant on record. Here in this case, however, since legal heirs of deceased defendant No. 2 have fled application to bring themselves on record and in such circumstances, there is no application of Order 22 Rule 4(4) of the Code of Civil Procedure. The Trial Court has wrongly applied the said provision to the facts of the case which is rightly reversed by the First Appellate Court by passing the impugned order. Hence, there is no merit in the appeal. Appeal stands dismissed.

( R. M. JOSHI) Judge dyb