9911796707
TMI Blog2004 (8) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... y the impugned order, dismissed the appeal filed by the appellant herein confirming the order passed by the Extra Joint District Judge, Jalgaon on October 13, 1999. 3. The plaintiff-respondent No. 1 - landlord filed a suit being Regular Civil Suit No. 121 of 1991 in the Court of Civil Judge (J.D), Bhusawal against defendant Nos. 1 and 2 Ganesh Prasad and Bhushan Bajaj for recovery of possession of property bearing Municipal House No. 764 in CTS No. 1309, Gandhi Square, Bhusawal ( suit property for short) on the grounds that the landlord required the premises for his bona fide use, change of user of the property as also, non user of premises by the tenant and unlawful sub-letting by defendant No. 1 to defendant No. 2. The trial court, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death of original defendant Ganesh Prasad and failure to bring heirs on record within ninety days. It was also submitted that since no prayer for setting aside abatement had been made by the applicants, the application Exh 22 was not maintainable. The learned Extra Joint District Judge, by an order below Exh.22 on August 26, 1999 rejected the application for substitution of heirs, inter alia on the ground that no separate applications were filed for substitution, setting aside abatement of appeal and condonation of delay. 5. After the rejection of application Exh.22 on 'technical' ground, the appellants filed three applications (i) Exh.29 for setting aside abatement and for substituting them as parties; (ii) Exh.31 for condonati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the advocate appearing for deceased Ganesh Prasad. It was when the advocate at Jalgaon addressed a letter to the deceased defendant in July, 1999 that the matter had come up for hearing that the appellants came to know about the pendency of appeal before the District Court. They, therefore, immediately approached the advocate, informed him regarding the death of Ganesh Prasad and filed an application Exh.22. The lower appellate court unfortunately adopted a technical approach and dismissed the application on the ground that only one application was made. The court was also not right in observing that there was no reasonable explanation for delay. When the appellants were not aware of pending proceedings at Jalgaon, they could not make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the lower appellate court and confirmed by the High Court. It was submitted that nothing was shown to the lower appellate court as to want of knowledge on the part of the appellants regarding pendency of appeal before the District Court and hence the court held that there was no reasonable explanation for condonation of delay. As to applications Exh.29, Exh.31 and Exh.33, the counsel submitted that the court was right in dismissing those applications on merits as also on the ground of res judicata, the reason being that earlier application Exh.22 was dismissed on merits. The counsel also submitted that the High Court has again considered the contentions raised by the appellants and dismissed the appeal on the ground of maintainabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be applied when the Court felt that the applications were not maintainable. In our considered view, this is not a case of inaction or negligence on the part of the appellants. 11. For the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The order passed by the Extra Joint District Judge, Jalgaon on October 13, 1999 and confirmed by the High Court on December 18, 2003, are set aside and the applications stand allowed. In the facts and circumstances, however, the appellants will pay an amount of ₹ 10,000/- (Rupees ten thousand only) to the plaintiff-respondent No. 1 by way of costs. Let the amount be paid within a period of three months from today. The lower appellate court thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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