Sindhubai Mahadeo Kendre v. Baburao Ranba Neharkar And Others

(1) 13 CA-14842.2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 13 CIVIL APPLICATION NO. 14842 OF 2022 IN SA/598/2018 SINDHUBAI MAHADEO KENDRE

VERSUS

BABURAO RANBA NEHARKAR AND OTHERS WITH SECOND APPEAL NO. 598 OF 2018 WITH CIVIL APPLICATION NO. 9146 OF 2018 IN SA/598/2018 ...

Mr. Avinash Patil, Advocate holding for Mr. Shailesh Chapalgaonkar, Advocate for the applicant.

Mr. A.R. Tapse, Advocate holding for Mr. P.D. Suryawanshi, Advocate for respondent Nos.1 and 2.

Mr. A.R. Tapse, Advocate for respondent Nos. 6D, 6E, 6H, 8A, 9 and 11.

...

CORAM :

SANDIPKUMAR C. MORE, J.

DATED :

15 January 2024 ORDER:- IN CIVIL APPLICATION NO. 14842 OF 2022 :

1.

Heard rival submissions.

2.

The applicant i.e. original defendant No.2, who has filed the second appeal, is seeking permission to bring on record the legal representatives of respondent Nos.3 to 5 by condoning the delay as well as setting aside implied abatement order. They also claimed for setting aside abatement order against respondent Nos.7 and 8 dated 02.05.2019. 3.

Learned Counsel for respondent Nos.1 and 2, who are the original plaintiffs, has strongly opposed the application on the ground that decree passed by the learned trial Court is in their

(2) 13 CA-14842.2022.odt favour whereas the first appellate court has also confirmed the same. According to him, there is inordinate delay in filing this application.

4.

It appears that though certain grounds are raised for condonation of delay, but the same are not genuine grounds. It is difficult to believe that the applicant was not knowing death of respondent Nos.3 to 5 and their respective legal representatives. However, considering the statutory right of the applicant, the delay caused in filing this application can be condoned by awarding suitable cost to the contesting respondent Nos.1 and 2. Accordingly, the application stands allowed in terms of prayer clauses (B), (C) and (D) subject to cost of Rs. 2000/- to be paid to respondent Nos.1 and 2 in equal proportion within the period of two weeks. The necessary amendment be carried out within the stipulated period. Application is accordingly disposed of. 5.

List the appeal and other application on 29.01.2024. Interim relief granted earlier, to continue till then. (SANDIPKUMAR C. MORE, J.) vd_dhirde