SAU SAVITA MAHESH WANJARI AND OTHERS v. RAJESH SHANTILAL LALWANI AND OTHERS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCIVIL APPLICATION NO.2008 OF 2025INCIVIL REVISION APPLICATION NO.101 OF 2022SAU SAVITA MAHESH WANJARI AND OTHERSVERSUSRAJESH SHANTILAL LALWANI AND OTHERS …Mr. J. R. Shah, Advocate for the Applicants.Mr. Girish Rane, Advocate for Respondents.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 17th MARCH, 2025.ORDER:- 1.The present application is filed by Revision Applicants withfollowing prayers:“A.The Hon’ble High Court may be pleased to condonethe delay of 632 days for recalling of the order dated28.04.2023, whereby the Civil Revision Application wasdismissed against the Respondent No.2 and 3.B.The Hon’ble High Court may be pleased to recall theorder dated 28.04.2023, whereby the Civil RevisionApplication was dismissed against the Respondent No.2and 3.C.The Hon’ble High Court please to grant leave toamend the cause title of the Civil Revision Application byallowing the applicants to bracket the name of RespondentNo.2 as deceased and bracketing the name of MukeshShantilal Lalwani, name of respondent no.1 allowed to besubstituted to represent the Firm Anand Shanti Buildersand Developers.”2.Mr. Shah, learned Advocate appearing for the applicantssubmits that on 05.10.2020 original plaintiff no.2/presentrespondent No. 2, Mukesh Shantilal Lalwani expired duringpendency of suit. The steps were taken to bring his legal (2) ca-2008-2025.odtrepresentatives on record of suit. Since application for bringinglegal representatives in the original suit was not yet decided, present Civil Revision Application has been filed as per title shownin original suit. An application below Exhibit-184 is filed byoriginal plaintiff no.1 in pending suit seeking amendment of plaintunder Order VI Rule 17 of the Code of Civil Procedure claimingthat deceased has executed Will and bequeathed his share ofpartnership. Mr. Shah would submit that when Civil RevisionApplication was listed before this Court on 28.04.2023, observingthat no steps were taken to bring on record legal representatives ofdeceased respondent nos.2 and 3, Civil Revision Application cameto be dismissed against them for want of steps.3.Mr. Shah would further submit that infact respondent nos.1to 3 instituted suit claiming rights of partnership firm over suitproperty. The respondent no.3 is partnership firm, who is madeparty through partner i.e. respondent no.2-Mukesh ShantilalLalwani. The respondent no.1 is also one of the partner of firm. Therefore, on death of respondent no.2, respondent no.1 canrepresent respondent no.3-Firm being partner. If such amendmentis permitted, proceeding in Civil Revision Application can becontinued as against respondent nos.1 and 3. According to him, death of respondent no.2-Mukesh Shantilal Lalwani wasinconsequential and dismissal of Revision Application against (3) ca-2008-2025.odtrespondent nos.2 and 3 for want of steps to bring legalrepresentatives was inconsistent to spirit of provision under OrderXXX Rule 4 of Code of Civil Procedure. He submits that Section153 of the Code of Civil Procedure enables Court to permitamendment to cure defect or error in any proceeding in the suit, ifsuch amendment is required for the purpose of determining realquestion or issue in such proceeding. In support of his contentions, he relies upon judgment of Supreme Court of India in case of BrijKishore Sharma and Another Vs. Ram Singh and Sons andOthers1 and judgment of this Court in case of Ashish RajendraMalara Vs. Narayan Sonu Wani and Others2.4.Per contra, Mr. Rane, learned Advocate appearing forrespondent nos.1 to 3 vehemently opposes application by filingaffidavit-in-reply. He submits that present application ismisconceived in both facts and law, especially when an alternateand more appropriate remedy has not been exhausted. He submitsthat present application is inordinately delayed by 632 days. Inaction on the part of applicants bestowed certain rights in favourof respondents. The application sans sufficient cause for condoningexponential delay. The applicants were well aware about orderdated 28.04.2023 and dismissal of Civil Revision Applicationagainst respondent nos.2 and 3 for want of steps. No explanationis tendered for long silence. The order has, therefore, attained1(1996) 11 SCC 480.22015 (6) Mh.L.J. 627. (4) ca-2008-2025.odtfinality. The applicants deemed to have accepted the order. Present application is nothing but attempt to camouflage failure ofapplicants to take suitable steps within reasonable period. Therecalling of order dated 28.04.2023 would have devastated effect onthe rights accrued in favour of respondents/plaintiffs. Theapplication for recalling of order sans support of enablingprovisions. Such a novel prayer cannot be entertained. In supportof his contentions, he relies upon observations of Supreme Court ofIndia in case of Rangubai Jagtap Vs. Sunderabai Jedhe3 andUnion of India and Anr. Vs. Jahangir Byramji Jeejeebhoy4 tocontend that application for condonation of delay cannot be dealtwith in routine manner. The delay should not be excused as amatter of generosity. Rendering justice should not cause prejudiceto the opposite party. Parties who have not been reasonablydiligent in prosecuting the matter must suffer.5.Having considered submissions advanced, first of allreference to original proceeding from which present Civil RevisionApplication arises would be necessary. The respondent nos.1 to 3instituted Special Civil Suit No.66/2020 seeking declaration thatsale deeds executed in favour of defendant nos.5 to 35 are null andvoid, since those have been executed without any authority. Thesuit is instituted in the name of two partners namely RajeshLalwani and Mukesh Lalwani alongwith partnership firm namely3AIR 1965 SC 1794.4AIR 2024 SC 1884. (5) ca-2008-2025.odtAnand Shanti Builders and Developers through partner MukeshLalwani. The genesis of claim in suit is based on rights ofpartnership firm in suit property. Essentially, no individual reliefis claimed. Eventually, reasonable inference can be drawn thatplaintiff nos.1 and 2 i.e. partners of firm are not claimingindividual relief, but litigating for joint relief, being partners ofplaintiff no.3-partnership firm. The defendants filed applicationsseeking rejection of plaint on various counts. Those applicationsare rejected. Therefore, individual Civil Revision Applications arefiled assailing such orders before this Court.6.The present Civil Revision Application is filed by some of thedefendants. In this background, this Court, prima facie, holds thatsuit is governed by provisions of Order XXX of Code of CivilProcedure. In essence, in case of death of partner, Order XXX Rule4 would govern proceeding. For ready reference Order XXX Rule 4of Code of Civil Procedure is given hereunder:“4. Rights of suit on death of partner.—(1)Notwithstanding anything contained in section 45 of theIndian Contract Act, 1872 (9 of 1872) where two or morepersons may sue or be sued in the name of a firm under theforegoing provisions and any of such persons dies, whetherbefore the institution or during the pendency of any suit, itshall not be necessary to join the legal representative of thedeceased as a party to the suit. (2) Nothing in sub-rule (1) shall limit or otherwise effect anyright which the legal representative of the deceased may have—(a) to apply to be made a party to the suit, or (6) ca-2008-2025.odt(b) to enforce any claim against the survivor orsurvivors.”7.The Division Bench of this Court in case of ManoharKashinath Vyawahare Vs. Dattatraya son of KrishnaraoPitale & Another5 after considering scheme of Order XXX Rule 4of Code of Civil Procedure observed as under:“10. Purport and object of Rule 4 of Order XXX is to saveprotraction of litigation when a Firm is a party to suit, andsuit can be legitimately continued if the legal heirs ofdeceased partners are not brought before the Court. Thisprovision is an enabling provision and made to avoidprotracting the suit or proceedings. Object of the rule is todispense with impleadment, so that these steps do not comein the way of expeditious disposal. This provision cannot beused to deny rightful impleadment, when such impleadmentdoes not defeat the purpose of the early disposal of suit or initself can avoid further litigation.”8.Similarly, Supreme Court of India in case of Suresh Kumarand others Vs. Baluram (d) through L.Rs. And another6observed in paragraph no.9 as under:“A fair understanding of reading of the rule would make itclear that where two or more persons may sue or be sued inthe name of a firm under the provisions of other rules ofOrder 30 and any such persons die, during the pendency ofany suit, it shall not be necessary to join the legalrepresentative’s of the deceased as a party to the suit.”9.Similar view is reiterated by Supreme Court of India in caseof Brij Kishore Sharma and Another (supra) and by this Courtin case of Ashish Rajendra Malara (supra).52010 2 MhLJ 365.62009 2 MPLJ 198. (7) ca-2008-2025.odt10.Considering the aforesaid exposition of law, in the case of thedeath of a partner in a proceeding instituted in the name of apartnership firm, it is not necessary to bring legal representativesof the deceased partner on record as parties to the suit. However, legal representatives may, on their own volition, apply to be madeparties to the suit.11.In light of aforesaid legal position, dismissal of proceedingagainst respondent nos.2 and 3 for want of steps to bring on recordlegal representatives would not be sustainable. However, defectcan be cured by exercising powers of this Court under Section 153of Code of Civil Procedure. For that purpose, order dated28.04.2023 needs to be recalled and application needs to be allowedin terms of prayer Clauses (B) and (C). Although prayers areopposed on the ground of delay, this Court holds that no prejudicewould be caused to respondents, since order dated 28.04.2023 itselfcannot be perpetuated being inconsistent with legal position. Hence, following order:ORDERa.Civil Application is allowed in terms of prayer Clauses (A),(B) and (C). (S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025