SUMAN S/O. GANPATI CHOTHALE Vs. PRAVIN MAHADEO MATTE

JUDGEMENT

(1.) Rule Returnable Forthwith. By Consent, Heard Finally At the stage of admission.

(2.) The Petitioner Has Questioned the order dt.8.2.2012 passed by the Civil Judge (Jr.Dn.), Gondpipri below Exhs. 43 and 44 in pending Regular Civil Suit No.65 of 2009 (old Civil Suit No.223 of 2008). It appears that, in a pending suit, applications were made for condonation of delay on the ground that deceased Jagannath Mate, who died on 19.12.2010, was taken care of by the applicant who preferred applications Exhs. 43 and 44 in pending Regular Civil Suit No.65 of 2009 in the Court of Civil Judge (Jr.Dn.), Chandrapur. The applicant contended that, on 9.7.2011, he came across a document of Will executed by Jagannath Mate in relation to the suit property. Therefore, the application was for condonation of delay on the ground that right to sue survive and hence, prayer to set aside abatement of the suit as against the applicant and for substitution of his name in place of deceased Jagannath Mate as plaintiff was made. The application was challenged by the defendant in the suit on the ground that legal heirs of Jagannath are only legal heirs after death of Jagannath. In other words, the Will deed canvassed by the applicant was disputed as a bogus document. It was contended by the defendant that deceased Jagannath has never executed any such Will as canvassed by the applicant.

(3.) Learned Counsel For The Petitioner Made A Reference to the case of Sarguja Transport Service .vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, 1987 1 SCC 5 to argue that earlier the applicant in the trial Court had withdrawn the application and therefore, he could have filed fresh application. This contention is opposed by the learned Counsel for the respondent on the ground that the respondent did apply on 17.8.2011 to bring his name as legal heir of deceased plaintiff, but the application was never argued on merits and was disposed of as not pressed on 8.2.2012. However, the trial Court was informed about the Will deed executed by deceased Jagannath (original plaintiff) and the fact that respondent Pravin Mahadeo Mate acquired right in the suit property being a legatee named in the Will. Thus, the question as to validity of Will is raised and the question can be decided on merits by the trial Court. Under these circumstances, the trial Court was justified in setting aside the order of abatement and in ordering substitution of the respondent in place of the plaintiff considering the provisions of Order XXII, Rule 9 of the Code of Civil Procedure. It is also contended that after death of Jagannath on or about 9.7.2011, Will was traced while the applicant was checking the documents. The applicant had also found that the deceased/plaintiff had bequeathed his share in the suit property to the applicant. Under these circumstances, had the trial Court not allowed the name of the respondent to be included as plaintiff, there would have been failure of justice and the question regarding validity of the Will would have remained without any decision by the competent Civil Court.