Semantic Analysis by spaCy
Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors.
Decided On : Oct-28-2004
Court : Mumbai
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Kamdar', (int) 1 => 'Nos', (int) 2 => 'Nos', (int) 3 => 'Tahsil Mul', (int) 4 => 'Dina Durga', (int) 5 => 'Kowe', (int) 6 => 'Bhagirathabai', (int) 7 => 'Puran Singh', (int) 8 => 'Singh Kalra', (int) 9 => 'Pramod Gupta', (int) 10 => 'Jamabanddhi' ), 'CARDINAL' => array( (int) 0 => '5922', (int) 1 => '2', (int) 2 => '3', (int) 3 => '3', (int) 4 => '4', (int) 5 => '2 to 5', (int) 6 => '27-11-1956', (int) 7 => '27-12-1950', (int) 8 => '677', (int) 9 => '24', (int) 10 => 'one', (int) 11 => 'five', (int) 12 => '2571', (int) 13 => '1991.5', (int) 14 => '3', (int) 15 => '3', (int) 16 => '3', (int) 17 => '3', (int) 18 => '3', (int) 19 => 'one', (int) 20 => 'one', (int) 21 => 'one', (int) 22 => '2571', (int) 23 => '3' ), 'DATE' => array( (int) 0 => '2004', (int) 1 => '10th March, 1992', (int) 2 => '10th March, 1992', (int) 3 => '4th July, 1991', (int) 4 => '10th September, 2004', (int) 5 => '1974', (int) 6 => 'the year 1976-77', (int) 7 => '11-5-1979', (int) 8 => '1979', (int) 9 => '10th October, 1984', (int) 10 => '4th July, 1991', (int) 11 => 'about six years', (int) 12 => '1991', (int) 13 => 'the year 1991' ), 'ORG' => array( (int) 0 => 'the Letters Patent Appeal', (int) 1 => 'Civil Application', (int) 2 => 'the Maharashtra Revenue Tribunal', (int) 3 => 'the Maharashtra Restoration of Lands', (int) 4 => 'Bhadurna', (int) 5 => 'the Maharashtra Revenue Tribunal', (int) 6 => 'Tribunal', (int) 7 => 'Tribunal', (int) 8 => 'us.6', (int) 9 => 'Apex Court', (int) 10 => 'Court', (int) 11 => 'Apex Court', (int) 12 => 'S. Amarjit', (int) 13 => 'the High Court', (int) 14 => 'the High Court', (int) 15 => 'the High Court', (int) 16 => 'Court', (int) 17 => 'Court', (int) 18 => 'the High Court', (int) 19 => 'Court' ), 'LOC' => array( (int) 0 => 'Single Judge', (int) 1 => 'Single Judge', (int) 2 => 'Single Judge', (int) 3 => 'Single', (int) 4 => 'Single Judge', (int) 5 => 'Single Judge', (int) 6 => 'Single Judge', (int) 7 => 'Single' ), 'FAC' => array( (int) 0 => 'Tahsildar', (int) 1 => 'Tahsildar' ), 'QUANTITY' => array( (int) 0 => '2.55 acres', (int) 1 => '5 km' ), 'TIME' => array( (int) 0 => '9-1-1989' ), 'ORDINAL' => array( (int) 0 => 'Secondly' ) ), 'desc' => array( 'Judgement' => array( 'id' => '365969', 'acts' => 'Code of Civil Procedure (CPC) - Order 22, Rule 1; <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 5', 'appealno' => 'L.P.A. No. 81 of 1993 in W.P. No. 2571 of 1991', 'appellant' => 'Keshao S/O Kawadu Maral and anr.', 'authreffered' => '', 'casename' => 'Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors.', 'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition, application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. - Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => ' Puran Singh and Ors. v. State of Punjab and Ors Mentioned S. Amarjit Singh Kalra v. Pramod Gupta Mentioned ___________ ', 'counselplain' => 'S.A. Jaiswal, Adv.', 'counseldef' => 'P.B. Patil, Adv. for respondent Nos. 2 to 5', 'court' => 'Mumbai', 'court_type' => 'HC', 'decidedon' => '2004-10-28', 'deposition' => 'Appeal allowed', 'favorof' => null, 'findings' => null, 'judge' => 'V.C. Daga and ;S.U. Kamdar, JJ.', 'judgement' => '<p style="text-align: justify;">S.U. Kamdar, J. </p><p style="text-align: justify;">1. C.A. No. 5922 of 2004 : By the present civil application, the applicants/respondents Nos. 2 and 3 are seeking early disposal of the Letters Patent Appeal. Civil Application is granted. Appeal is taken up hearing forthwith.</p><p style="text-align: justify;">2. Heard learned Counsel for the parties. The present appeal is arising out of the order dated 10th March, 1992 passed by the Single Judge. By the impugned order dated 10th March, 1992, the learned Single Judge has dismissed the petition as abated. According to the learned Single Judge, there was delay in filing the application for bringing legal heirs of deceased respondent No. 3 on record and in view thereof, application for condonation of delay has been refused and the petition has been dismissed.</p><p style="text-align: justify;">3. The main petition was filed challenging the order dated 4th July, 1991 passed by the Maharashtra Revenue Tribunal in Appeal No. l/B-109/89 confirming the order dated 10th September, 2004 passed by the Tahsildar. Some of the facts of the present case are as under :</p><p style="text-align: justify;">4. That the respondent Nos. 2 to 5 are tribals under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribe Act, 1974. According to the appellants, the said land being an area of 2.55 acres situated at village Bhadurna, Tahsil Mul, Dist. Chandrapur was agreed to be sold under an agreement to sell dated 27-11-1956 in favour of the father of the appellants and he was placed in possession of the property and deed was executed on 27-12-1950. According to the appellants, since then they are in peaceful possession of the property. In the year 1976-77, revenue proceeding commenced being Revenue Case No. 677/LND-31/76-77 and the appellants received notice dated 11-5-1979 under Section 3 of the Act. The notice was challenged by filing writ petition No. 3171 of 1979 and the said proceedings were stayed. On 24-2-1984 the petition was dismissed directing the appellants to appear before the authority. During the pendency of the said proceedings, one of the vendors, viz. Dina Durga Kowe died, leaving behind his widow Bhagirathabai and five daughters. The said persons were not made parties to the proceedings. By an order dated 10th October, 1984 an order came to be passed allowing the said application against the appellants herein. The appellants, therefore, filed an appeal before the Maharashtra Revenue Tribunal on 9-1-1989. The order of the Tahsildar was stayed by the Tribunal. However, the tribunal ultimately dismissed the appeal by an order dated 4th July, 1991. It is this order of dismissal of appeal by the Tribunal which was a subject-matter of challenge in writ petition No. 2571 of 1991.</p><p style="text-align: justify;">5. During the pendency of the writ petition, appellants filed an application seeking permission to bring legal heirs of respondent No. 3 on record, saying that immediately after the knowledge of the death of the said respondent No. 3, the application was taken out. However, the learned Single Judge has by an impugned judgment dismissed the petition as abated on the ground that there is considerable delay of about six years in taking out the applications. It is this order of the learned Single Judge which is in appeal before us.</p><p style="text-align: justify;">6. We have heard the learned Counsel for the parties. The learned Counsel for the appellants submits that the appellants and the respondents are residents of adjoining villages while the respondents are residents of adjoining villages which is at a distance of 5 km. and thus, they were not aware about the death of the respondent No. 3. He submits that that delay in the facts of the present case, deserves to be condoned in the interest of justice and appellants may be permitted to bring legal representatives of the deceased respondent No. 3 on record.</p><p style="text-align: justify;">7. On the other hand, the learned Counsel for the respondents contends that the impugned order deserves no interference. He relied upon the Apex Court judgment in the case of Puran Singh and Ors. v. State of Punjab and Ors. : [1996]1SCR730 and contended that appellants cannot be permitted to bring legal representatives of deceased respondent No. 3 on record.</p><p style="text-align: justify;">8. We are of the view that the order passed by the learned Single Judge is unsustainable in law. The delay in taking out the application has to be computed from the date of knowledge of the death of a party. It is the case of the appellants that they had no knowledge and as soon as they acquired knowledge, they took out application for bringing legal heirs on record. This aspect as regards knowledge is not seriously disputed by the respondent. Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. In the aforesaid circumstances, we are of the view that the learned Single Judge was in error in refusing to use discretion vested in him for condoning delay in taking out application for bringing legal heirs on record. Even if proceeding abates, the Court has ample powers to set aside the abatement, and condone the delay to bring legal heirs on record. We are supported in our aforesaid view by the Apex Court judgment in the case of S. Amarjit Singh Kalra v. Pramod Gupta : [2002]SUPP5SCR350 , wherein it is observed as under:</p><p style="text-align: justify;">'Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid on justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not inter-dependent upon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.'</p><p style="text-align: justify;">9. In the light of the above, the order passed by the learned Single Judge is unsustainable. We allow the appeal, restore Writ Petition No. 2571 of 1991 to file. We permit the appellants to bring legal heirs of deceased respondent No. 3 on record. Since the writ petition is of the year 1991, we request the learned Single Judge to decide the writ petition as expeditiously as possible. We allow the appeal in terms aforesaid. However, there will be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005(2)ALLMR268; 2005(1)MhLj1059', 'ratiodecidendi' => '', 'respondent' => 'State of Maharashtra and ors.', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '365969' ) ) $title_for_layout = 'Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 3 of the Act', (int) 1 => 'Order 22', (int) 2 => 'Rule 1', (int) 3 => 'Order 22', (int) 4 => 'Order 22' ), 'PERSON' => array( (int) 0 => 'S.U. Kamdar', (int) 1 => 'Nos', (int) 2 => 'Nos', (int) 3 => 'Tahsil Mul', (int) 4 => 'Dina Durga', (int) 5 => 'Kowe', (int) 6 => 'Bhagirathabai', (int) 7 => 'Puran Singh', (int) 8 => 'Singh Kalra', (int) 9 => 'Pramod Gupta', (int) 10 => 'Jamabanddhi' ), 'CARDINAL' => array( (int) 0 => '5922', (int) 1 => '2', (int) 2 => '3', (int) 3 => '3', (int) 4 => '4', (int) 5 => '2 to 5', (int) 6 => '27-11-1956', (int) 7 => '27-12-1950', (int) 8 => '677', (int) 9 => '24', (int) 10 => 'one', (int) 11 => 'five', (int) 12 => '2571', (int) 13 => '1991.5', (int) 14 => '3', (int) 15 => '3', (int) 16 => '3', (int) 17 => '3', (int) 18 => '3', (int) 19 => 'one', (int) 20 => 'one', (int) 21 => 'one', (int) 22 => '2571', (int) 23 => '3' ), 'DATE' => array( (int) 0 => '2004', (int) 1 => '10th March, 1992', (int) 2 => '10th March, 1992', (int) 3 => '4th July, 1991', (int) 4 => '10th September, 2004', (int) 5 => '1974', (int) 6 => 'the year 1976-77', (int) 7 => '11-5-1979', (int) 8 => '1979', (int) 9 => '10th October, 1984', (int) 10 => '4th July, 1991', (int) 11 => 'about six years', (int) 12 => '1991', (int) 13 => 'the year 1991' ), 'ORG' => array( (int) 0 => 'the Letters Patent Appeal', (int) 1 => 'Civil Application', (int) 2 => 'the Maharashtra Revenue Tribunal', (int) 3 => 'the Maharashtra Restoration of Lands', (int) 4 => 'Bhadurna', (int) 5 => 'the Maharashtra Revenue Tribunal', (int) 6 => 'Tribunal', (int) 7 => 'Tribunal', (int) 8 => 'us.6', (int) 9 => 'Apex Court', (int) 10 => 'Court', (int) 11 => 'Apex Court', (int) 12 => 'S. Amarjit', (int) 13 => 'the High Court', (int) 14 => 'the High Court', (int) 15 => 'the High Court', (int) 16 => 'Court', (int) 17 => 'Court', (int) 18 => 'the High Court', (int) 19 => 'Court' ), 'LOC' => array( (int) 0 => 'Single Judge', (int) 1 => 'Single Judge', (int) 2 => 'Single Judge', (int) 3 => 'Single', (int) 4 => 'Single Judge', (int) 5 => 'Single Judge', (int) 6 => 'Single Judge', (int) 7 => 'Single' ), 'FAC' => array( (int) 0 => 'Tahsildar', (int) 1 => 'Tahsildar' ), 'QUANTITY' => array( (int) 0 => '2.55 acres', (int) 1 => '5 km' ), 'TIME' => array( (int) 0 => '9-1-1989' ), 'ORDINAL' => array( (int) 0 => 'Secondly' ) ) $desc = array( 'Judgement' => array( 'id' => '365969', 'acts' => 'Code of Civil Procedure (CPC) - Order 22, Rule 1; <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 5', 'appealno' => 'L.P.A. No. 81 of 1993 in W.P. No. 2571 of 1991', 'appellant' => 'Keshao S/O Kawadu Maral and anr.', 'authreffered' => '', 'casename' => 'Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors.', 'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition, application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. - Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => ' Puran Singh and Ors. v. State of Punjab and Ors Mentioned S. Amarjit Singh Kalra v. Pramod Gupta Mentioned ___________ ', 'counselplain' => 'S.A. Jaiswal, Adv.', 'counseldef' => 'P.B. Patil, Adv. for respondent Nos. 2 to 5', 'court' => 'Mumbai', 'court_type' => 'HC', 'decidedon' => '2004-10-28', 'deposition' => 'Appeal allowed', 'favorof' => null, 'findings' => null, 'judge' => 'V.C. Daga and ;S.U. Kamdar, JJ.', 'judgement' => '<p style="text-align: justify;">S.U. Kamdar, J. </p><p style="text-align: justify;">1. C.A. No. 5922 of 2004 : By the present civil application, the applicants/respondents Nos. 2 and 3 are seeking early disposal of the Letters Patent Appeal. Civil Application is granted. Appeal is taken up hearing forthwith.</p><p style="text-align: justify;">2. Heard learned Counsel for the parties. The present appeal is arising out of the order dated 10th March, 1992 passed by the Single Judge. By the impugned order dated 10th March, 1992, the learned Single Judge has dismissed the petition as abated. According to the learned Single Judge, there was delay in filing the application for bringing legal heirs of deceased respondent No. 3 on record and in view thereof, application for condonation of delay has been refused and the petition has been dismissed.</p><p style="text-align: justify;">3. The main petition was filed challenging the order dated 4th July, 1991 passed by the Maharashtra Revenue Tribunal in Appeal No. l/B-109/89 confirming the order dated 10th September, 2004 passed by the Tahsildar. Some of the facts of the present case are as under :</p><p style="text-align: justify;">4. That the respondent Nos. 2 to 5 are tribals under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribe Act, 1974. According to the appellants, the said land being an area of 2.55 acres situated at village Bhadurna, Tahsil Mul, Dist. Chandrapur was agreed to be sold under an agreement to sell dated 27-11-1956 in favour of the father of the appellants and he was placed in possession of the property and deed was executed on 27-12-1950. According to the appellants, since then they are in peaceful possession of the property. In the year 1976-77, revenue proceeding commenced being Revenue Case No. 677/LND-31/76-77 and the appellants received notice dated 11-5-1979 under Section 3 of the Act. The notice was challenged by filing writ petition No. 3171 of 1979 and the said proceedings were stayed. On 24-2-1984 the petition was dismissed directing the appellants to appear before the authority. During the pendency of the said proceedings, one of the vendors, viz. Dina Durga Kowe died, leaving behind his widow Bhagirathabai and five daughters. The said persons were not made parties to the proceedings. By an order dated 10th October, 1984 an order came to be passed allowing the said application against the appellants herein. The appellants, therefore, filed an appeal before the Maharashtra Revenue Tribunal on 9-1-1989. The order of the Tahsildar was stayed by the Tribunal. However, the tribunal ultimately dismissed the appeal by an order dated 4th July, 1991. It is this order of dismissal of appeal by the Tribunal which was a subject-matter of challenge in writ petition No. 2571 of 1991.</p><p style="text-align: justify;">5. During the pendency of the writ petition, appellants filed an application seeking permission to bring legal heirs of respondent No. 3 on record, saying that immediately after the knowledge of the death of the said respondent No. 3, the application was taken out. However, the learned Single Judge has by an impugned judgment dismissed the petition as abated on the ground that there is considerable delay of about six years in taking out the applications. It is this order of the learned Single Judge which is in appeal before us.</p><p style="text-align: justify;">6. We have heard the learned Counsel for the parties. The learned Counsel for the appellants submits that the appellants and the respondents are residents of adjoining villages while the respondents are residents of adjoining villages which is at a distance of 5 km. and thus, they were not aware about the death of the respondent No. 3. He submits that that delay in the facts of the present case, deserves to be condoned in the interest of justice and appellants may be permitted to bring legal representatives of the deceased respondent No. 3 on record.</p><p style="text-align: justify;">7. On the other hand, the learned Counsel for the respondents contends that the impugned order deserves no interference. He relied upon the Apex Court judgment in the case of Puran Singh and Ors. v. State of Punjab and Ors. : [1996]1SCR730 and contended that appellants cannot be permitted to bring legal representatives of deceased respondent No. 3 on record.</p><p style="text-align: justify;">8. We are of the view that the order passed by the learned Single Judge is unsustainable in law. The delay in taking out the application has to be computed from the date of knowledge of the death of a party. It is the case of the appellants that they had no knowledge and as soon as they acquired knowledge, they took out application for bringing legal heirs on record. This aspect as regards knowledge is not seriously disputed by the respondent. Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. In the aforesaid circumstances, we are of the view that the learned Single Judge was in error in refusing to use discretion vested in him for condoning delay in taking out application for bringing legal heirs on record. Even if proceeding abates, the Court has ample powers to set aside the abatement, and condone the delay to bring legal heirs on record. We are supported in our aforesaid view by the Apex Court judgment in the case of S. Amarjit Singh Kalra v. Pramod Gupta : [2002]SUPP5SCR350 , wherein it is observed as under:</p><p style="text-align: justify;">'Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid on justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not inter-dependent upon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.'</p><p style="text-align: justify;">9. In the light of the above, the order passed by the learned Single Judge is unsustainable. We allow the appeal, restore Writ Petition No. 2571 of 1991 to file. We permit the appellants to bring legal heirs of deceased respondent No. 3 on record. Since the writ petition is of the year 1991, we request the learned Single Judge to decide the writ petition as expeditiously as possible. We allow the appeal in terms aforesaid. However, there will be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005(2)ALLMR268; 2005(1)MhLj1059', 'ratiodecidendi' => '', 'respondent' => 'State of Maharashtra and ors.', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '365969' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Warning (2): Invalid argument supplied for foreach() [APP/View/Case/meta.ctp, line 39]Code Context//$shops = $shops['entities'];foreach ($shops2 as $key => $val) {$viewFile = '/home/legalcrystal/app/View/Case/meta.ctp' $dataForView = array( 'title_for_layout' => 'Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors. Semantic Analysis', 'shops' => array( 'LAW' => array( (int) 0 => 'Section 3 of the Act', (int) 1 => 'Order 22', (int) 2 => 'Rule 1', (int) 3 => 'Order 22', (int) 4 => 'Order 22' ), 'PERSON' => array( (int) 0 => 'S.U. Kamdar', (int) 1 => 'Nos', (int) 2 => 'Nos', (int) 3 => 'Tahsil Mul', (int) 4 => 'Dina Durga', (int) 5 => 'Kowe', (int) 6 => 'Bhagirathabai', (int) 7 => 'Puran Singh', (int) 8 => 'Singh Kalra', (int) 9 => 'Pramod Gupta', (int) 10 => 'Jamabanddhi' ), 'CARDINAL' => array( (int) 0 => '5922', (int) 1 => '2', (int) 2 => '3', (int) 3 => '3', (int) 4 => '4', (int) 5 => '2 to 5', (int) 6 => '27-11-1956', (int) 7 => '27-12-1950', (int) 8 => '677', (int) 9 => '24', (int) 10 => 'one', (int) 11 => 'five', (int) 12 => '2571', (int) 13 => '1991.5', (int) 14 => '3', (int) 15 => '3', (int) 16 => '3', (int) 17 => '3', (int) 18 => '3', (int) 19 => 'one', (int) 20 => 'one', (int) 21 => 'one', (int) 22 => '2571', (int) 23 => '3' ), 'DATE' => array( (int) 0 => '2004', (int) 1 => '10th March, 1992', (int) 2 => '10th March, 1992', (int) 3 => '4th July, 1991', (int) 4 => '10th September, 2004', (int) 5 => '1974', (int) 6 => 'the year 1976-77', (int) 7 => '11-5-1979', (int) 8 => '1979', (int) 9 => '10th October, 1984', (int) 10 => '4th July, 1991', (int) 11 => 'about six years', (int) 12 => '1991', (int) 13 => 'the year 1991' ), 'ORG' => array( (int) 0 => 'the Letters Patent Appeal', (int) 1 => 'Civil Application', (int) 2 => 'the Maharashtra Revenue Tribunal', (int) 3 => 'the Maharashtra Restoration of Lands', (int) 4 => 'Bhadurna', (int) 5 => 'the Maharashtra Revenue Tribunal', (int) 6 => 'Tribunal', (int) 7 => 'Tribunal', (int) 8 => 'us.6', (int) 9 => 'Apex Court', (int) 10 => 'Court', (int) 11 => 'Apex Court', (int) 12 => 'S. Amarjit', (int) 13 => 'the High Court', (int) 14 => 'the High Court', (int) 15 => 'the High Court', (int) 16 => 'Court', (int) 17 => 'Court', (int) 18 => 'the High Court', (int) 19 => 'Court' ), 'LOC' => array( (int) 0 => 'Single Judge', (int) 1 => 'Single Judge', (int) 2 => 'Single Judge', (int) 3 => 'Single', (int) 4 => 'Single Judge', (int) 5 => 'Single Judge', (int) 6 => 'Single Judge', (int) 7 => 'Single' ), 'FAC' => array( (int) 0 => 'Tahsildar', (int) 1 => 'Tahsildar' ), 'QUANTITY' => array( (int) 0 => '2.55 acres', (int) 1 => '5 km' ), 'TIME' => array( (int) 0 => '9-1-1989' ), 'ORDINAL' => array( (int) 0 => 'Secondly' ) ), 'desc' => array( 'Judgement' => array( 'id' => '365969', 'acts' => 'Code of Civil Procedure (CPC) - Order 22, Rule 1; <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 5', 'appealno' => 'L.P.A. No. 81 of 1993 in W.P. No. 2571 of 1991', 'appellant' => 'Keshao S/O Kawadu Maral and anr.', 'authreffered' => '', 'casename' => 'Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors.', 'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition, application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. - Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => ' Puran Singh and Ors. v. State of Punjab and Ors Mentioned S. Amarjit Singh Kalra v. Pramod Gupta Mentioned ___________ ', 'counselplain' => 'S.A. Jaiswal, Adv.', 'counseldef' => 'P.B. Patil, Adv. for respondent Nos. 2 to 5', 'court' => 'Mumbai', 'court_type' => 'HC', 'decidedon' => '2004-10-28', 'deposition' => 'Appeal allowed', 'favorof' => null, 'findings' => null, 'judge' => 'V.C. Daga and ;S.U. Kamdar, JJ.', 'judgement' => '<p style="text-align: justify;">S.U. Kamdar, J. </p><p style="text-align: justify;">1. C.A. No. 5922 of 2004 : By the present civil application, the applicants/respondents Nos. 2 and 3 are seeking early disposal of the Letters Patent Appeal. Civil Application is granted. Appeal is taken up hearing forthwith.</p><p style="text-align: justify;">2. Heard learned Counsel for the parties. The present appeal is arising out of the order dated 10th March, 1992 passed by the Single Judge. By the impugned order dated 10th March, 1992, the learned Single Judge has dismissed the petition as abated. According to the learned Single Judge, there was delay in filing the application for bringing legal heirs of deceased respondent No. 3 on record and in view thereof, application for condonation of delay has been refused and the petition has been dismissed.</p><p style="text-align: justify;">3. The main petition was filed challenging the order dated 4th July, 1991 passed by the Maharashtra Revenue Tribunal in Appeal No. l/B-109/89 confirming the order dated 10th September, 2004 passed by the Tahsildar. Some of the facts of the present case are as under :</p><p style="text-align: justify;">4. That the respondent Nos. 2 to 5 are tribals under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribe Act, 1974. According to the appellants, the said land being an area of 2.55 acres situated at village Bhadurna, Tahsil Mul, Dist. Chandrapur was agreed to be sold under an agreement to sell dated 27-11-1956 in favour of the father of the appellants and he was placed in possession of the property and deed was executed on 27-12-1950. According to the appellants, since then they are in peaceful possession of the property. In the year 1976-77, revenue proceeding commenced being Revenue Case No. 677/LND-31/76-77 and the appellants received notice dated 11-5-1979 under Section 3 of the Act. The notice was challenged by filing writ petition No. 3171 of 1979 and the said proceedings were stayed. On 24-2-1984 the petition was dismissed directing the appellants to appear before the authority. During the pendency of the said proceedings, one of the vendors, viz. Dina Durga Kowe died, leaving behind his widow Bhagirathabai and five daughters. The said persons were not made parties to the proceedings. By an order dated 10th October, 1984 an order came to be passed allowing the said application against the appellants herein. The appellants, therefore, filed an appeal before the Maharashtra Revenue Tribunal on 9-1-1989. The order of the Tahsildar was stayed by the Tribunal. However, the tribunal ultimately dismissed the appeal by an order dated 4th July, 1991. It is this order of dismissal of appeal by the Tribunal which was a subject-matter of challenge in writ petition No. 2571 of 1991.</p><p style="text-align: justify;">5. During the pendency of the writ petition, appellants filed an application seeking permission to bring legal heirs of respondent No. 3 on record, saying that immediately after the knowledge of the death of the said respondent No. 3, the application was taken out. However, the learned Single Judge has by an impugned judgment dismissed the petition as abated on the ground that there is considerable delay of about six years in taking out the applications. It is this order of the learned Single Judge which is in appeal before us.</p><p style="text-align: justify;">6. We have heard the learned Counsel for the parties. The learned Counsel for the appellants submits that the appellants and the respondents are residents of adjoining villages while the respondents are residents of adjoining villages which is at a distance of 5 km. and thus, they were not aware about the death of the respondent No. 3. He submits that that delay in the facts of the present case, deserves to be condoned in the interest of justice and appellants may be permitted to bring legal representatives of the deceased respondent No. 3 on record.</p><p style="text-align: justify;">7. On the other hand, the learned Counsel for the respondents contends that the impugned order deserves no interference. He relied upon the Apex Court judgment in the case of Puran Singh and Ors. v. State of Punjab and Ors. : [1996]1SCR730 and contended that appellants cannot be permitted to bring legal representatives of deceased respondent No. 3 on record.</p><p style="text-align: justify;">8. We are of the view that the order passed by the learned Single Judge is unsustainable in law. The delay in taking out the application has to be computed from the date of knowledge of the death of a party. It is the case of the appellants that they had no knowledge and as soon as they acquired knowledge, they took out application for bringing legal heirs on record. This aspect as regards knowledge is not seriously disputed by the respondent. Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. In the aforesaid circumstances, we are of the view that the learned Single Judge was in error in refusing to use discretion vested in him for condoning delay in taking out application for bringing legal heirs on record. Even if proceeding abates, the Court has ample powers to set aside the abatement, and condone the delay to bring legal heirs on record. We are supported in our aforesaid view by the Apex Court judgment in the case of S. Amarjit Singh Kalra v. Pramod Gupta : [2002]SUPP5SCR350 , wherein it is observed as under:</p><p style="text-align: justify;">'Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid on justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not inter-dependent upon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.'</p><p style="text-align: justify;">9. In the light of the above, the order passed by the learned Single Judge is unsustainable. We allow the appeal, restore Writ Petition No. 2571 of 1991 to file. We permit the appellants to bring legal heirs of deceased respondent No. 3 on record. Since the writ petition is of the year 1991, we request the learned Single Judge to decide the writ petition as expeditiously as possible. We allow the appeal in terms aforesaid. However, there will be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005(2)ALLMR268; 2005(1)MhLj1059', 'ratiodecidendi' => '', 'respondent' => 'State of Maharashtra and ors.', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '365969' ) ) $title_for_layout = 'Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 3 of the Act', (int) 1 => 'Order 22', (int) 2 => 'Rule 1', (int) 3 => 'Order 22', (int) 4 => 'Order 22' ), 'PERSON' => array( (int) 0 => 'S.U. Kamdar', (int) 1 => 'Nos', (int) 2 => 'Nos', (int) 3 => 'Tahsil Mul', (int) 4 => 'Dina Durga', (int) 5 => 'Kowe', (int) 6 => 'Bhagirathabai', (int) 7 => 'Puran Singh', (int) 8 => 'Singh Kalra', (int) 9 => 'Pramod Gupta', (int) 10 => 'Jamabanddhi' ), 'CARDINAL' => array( (int) 0 => '5922', (int) 1 => '2', (int) 2 => '3', (int) 3 => '3', (int) 4 => '4', (int) 5 => '2 to 5', (int) 6 => '27-11-1956', (int) 7 => '27-12-1950', (int) 8 => '677', (int) 9 => '24', (int) 10 => 'one', (int) 11 => 'five', (int) 12 => '2571', (int) 13 => '1991.5', (int) 14 => '3', (int) 15 => '3', (int) 16 => '3', (int) 17 => '3', (int) 18 => '3', (int) 19 => 'one', (int) 20 => 'one', (int) 21 => 'one', (int) 22 => '2571', (int) 23 => '3' ), 'DATE' => array( (int) 0 => '2004', (int) 1 => '10th March, 1992', (int) 2 => '10th March, 1992', (int) 3 => '4th July, 1991', (int) 4 => '10th September, 2004', (int) 5 => '1974', (int) 6 => 'the year 1976-77', (int) 7 => '11-5-1979', (int) 8 => '1979', (int) 9 => '10th October, 1984', (int) 10 => '4th July, 1991', (int) 11 => 'about six years', (int) 12 => '1991', (int) 13 => 'the year 1991' ), 'ORG' => array( (int) 0 => 'the Letters Patent Appeal', (int) 1 => 'Civil Application', (int) 2 => 'the Maharashtra Revenue Tribunal', (int) 3 => 'the Maharashtra Restoration of Lands', (int) 4 => 'Bhadurna', (int) 5 => 'the Maharashtra Revenue Tribunal', (int) 6 => 'Tribunal', (int) 7 => 'Tribunal', (int) 8 => 'us.6', (int) 9 => 'Apex Court', (int) 10 => 'Court', (int) 11 => 'Apex Court', (int) 12 => 'S. Amarjit', (int) 13 => 'the High Court', (int) 14 => 'the High Court', (int) 15 => 'the High Court', (int) 16 => 'Court', (int) 17 => 'Court', (int) 18 => 'the High Court', (int) 19 => 'Court' ), 'LOC' => array( (int) 0 => 'Single Judge', (int) 1 => 'Single Judge', (int) 2 => 'Single Judge', (int) 3 => 'Single', (int) 4 => 'Single Judge', (int) 5 => 'Single Judge', (int) 6 => 'Single Judge', (int) 7 => 'Single' ), 'FAC' => array( (int) 0 => 'Tahsildar', (int) 1 => 'Tahsildar' ), 'QUANTITY' => array( (int) 0 => '2.55 acres', (int) 1 => '5 km' ), 'TIME' => array( (int) 0 => '9-1-1989' ), 'ORDINAL' => array( (int) 0 => 'Secondly' ) ) $desc = array( 'Judgement' => array( 'id' => '365969', 'acts' => 'Code of Civil Procedure (CPC) - Order 22, Rule 1; <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 5', 'appealno' => 'L.P.A. No. 81 of 1993 in W.P. No. 2571 of 1991', 'appellant' => 'Keshao S/O Kawadu Maral and anr.', 'authreffered' => '', 'casename' => 'Keshao S/O Kawadu Maral and anr. Vs. State of Maharashtra and ors.', 'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition, application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. - Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => ' Puran Singh and Ors. v. State of Punjab and Ors Mentioned S. Amarjit Singh Kalra v. Pramod Gupta Mentioned ___________ ', 'counselplain' => 'S.A. Jaiswal, Adv.', 'counseldef' => 'P.B. Patil, Adv. for respondent Nos. 2 to 5', 'court' => 'Mumbai', 'court_type' => 'HC', 'decidedon' => '2004-10-28', 'deposition' => 'Appeal allowed', 'favorof' => null, 'findings' => null, 'judge' => 'V.C. Daga and ;S.U. Kamdar, JJ.', 'judgement' => '<p style="text-align: justify;">S.U. Kamdar, J. </p><p style="text-align: justify;">1. C.A. No. 5922 of 2004 : By the present civil application, the applicants/respondents Nos. 2 and 3 are seeking early disposal of the Letters Patent Appeal. Civil Application is granted. Appeal is taken up hearing forthwith.</p><p style="text-align: justify;">2. Heard learned Counsel for the parties. The present appeal is arising out of the order dated 10th March, 1992 passed by the Single Judge. By the impugned order dated 10th March, 1992, the learned Single Judge has dismissed the petition as abated. According to the learned Single Judge, there was delay in filing the application for bringing legal heirs of deceased respondent No. 3 on record and in view thereof, application for condonation of delay has been refused and the petition has been dismissed.</p><p style="text-align: justify;">3. The main petition was filed challenging the order dated 4th July, 1991 passed by the Maharashtra Revenue Tribunal in Appeal No. l/B-109/89 confirming the order dated 10th September, 2004 passed by the Tahsildar. Some of the facts of the present case are as under :</p><p style="text-align: justify;">4. That the respondent Nos. 2 to 5 are tribals under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribe Act, 1974. According to the appellants, the said land being an area of 2.55 acres situated at village Bhadurna, Tahsil Mul, Dist. Chandrapur was agreed to be sold under an agreement to sell dated 27-11-1956 in favour of the father of the appellants and he was placed in possession of the property and deed was executed on 27-12-1950. According to the appellants, since then they are in peaceful possession of the property. In the year 1976-77, revenue proceeding commenced being Revenue Case No. 677/LND-31/76-77 and the appellants received notice dated 11-5-1979 under Section 3 of the Act. The notice was challenged by filing writ petition No. 3171 of 1979 and the said proceedings were stayed. On 24-2-1984 the petition was dismissed directing the appellants to appear before the authority. During the pendency of the said proceedings, one of the vendors, viz. Dina Durga Kowe died, leaving behind his widow Bhagirathabai and five daughters. The said persons were not made parties to the proceedings. By an order dated 10th October, 1984 an order came to be passed allowing the said application against the appellants herein. The appellants, therefore, filed an appeal before the Maharashtra Revenue Tribunal on 9-1-1989. The order of the Tahsildar was stayed by the Tribunal. However, the tribunal ultimately dismissed the appeal by an order dated 4th July, 1991. It is this order of dismissal of appeal by the Tribunal which was a subject-matter of challenge in writ petition No. 2571 of 1991.</p><p style="text-align: justify;">5. During the pendency of the writ petition, appellants filed an application seeking permission to bring legal heirs of respondent No. 3 on record, saying that immediately after the knowledge of the death of the said respondent No. 3, the application was taken out. However, the learned Single Judge has by an impugned judgment dismissed the petition as abated on the ground that there is considerable delay of about six years in taking out the applications. It is this order of the learned Single Judge which is in appeal before us.</p><p style="text-align: justify;">6. We have heard the learned Counsel for the parties. The learned Counsel for the appellants submits that the appellants and the respondents are residents of adjoining villages while the respondents are residents of adjoining villages which is at a distance of 5 km. and thus, they were not aware about the death of the respondent No. 3. He submits that that delay in the facts of the present case, deserves to be condoned in the interest of justice and appellants may be permitted to bring legal representatives of the deceased respondent No. 3 on record.</p><p style="text-align: justify;">7. On the other hand, the learned Counsel for the respondents contends that the impugned order deserves no interference. He relied upon the Apex Court judgment in the case of Puran Singh and Ors. v. State of Punjab and Ors. : [1996]1SCR730 and contended that appellants cannot be permitted to bring legal representatives of deceased respondent No. 3 on record.</p><p style="text-align: justify;">8. We are of the view that the order passed by the learned Single Judge is unsustainable in law. The delay in taking out the application has to be computed from the date of knowledge of the death of a party. It is the case of the appellants that they had no knowledge and as soon as they acquired knowledge, they took out application for bringing legal heirs on record. This aspect as regards knowledge is not seriously disputed by the respondent. Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. In the aforesaid circumstances, we are of the view that the learned Single Judge was in error in refusing to use discretion vested in him for condoning delay in taking out application for bringing legal heirs on record. Even if proceeding abates, the Court has ample powers to set aside the abatement, and condone the delay to bring legal heirs on record. We are supported in our aforesaid view by the Apex Court judgment in the case of S. Amarjit Singh Kalra v. Pramod Gupta : [2002]SUPP5SCR350 , wherein it is observed as under:</p><p style="text-align: justify;">'Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid on justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of Civil Procedure Code as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabanddhi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not inter-dependent upon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then interest of justice would require the remaining other appellants being allowed to pursue appeals for benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well.'</p><p style="text-align: justify;">9. In the light of the above, the order passed by the learned Single Judge is unsustainable. We allow the appeal, restore Writ Petition No. 2571 of 1991 to file. We permit the appellants to bring legal heirs of deceased respondent No. 3 on record. Since the writ petition is of the year 1991, we request the learned Single Judge to decide the writ petition as expeditiously as possible. We allow the appeal in terms aforesaid. However, there will be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005(2)ALLMR268; 2005(1)MhLj1059', 'ratiodecidendi' => '', 'respondent' => 'State of Maharashtra and ors.', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '365969' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 3 of the Act, Order 22, Rule 1, Order 22, Order 22
PERSON: S.U. Kamdar, Nos, Nos, Tahsil Mul, Dina Durga, Kowe, Bhagirathabai, Puran Singh, Singh Kalra, Pramod Gupta, Jamabanddhi
CARDINAL: 5922, 2, 3, 3, 4, 2 to 5, 27-11-1956, 27-12-1950, 677, 24, one, five, 2571, 1991.5, 3, 3, 3, 3, 3, one, one, one, 2571, 3
DATE: 2004, 10th March, 1992, 10th March, 1992, 4th July, 1991, 10th September, 2004, 1974, the year 1976-77, 11-5-1979, 1979, 10th October, 1984, 4th July, 1991, about six years, 1991, the year 1991
ORG: the Letters Patent Appeal, Civil Application, the Maharashtra Revenue Tribunal, the Maharashtra Restoration of Lands, Bhadurna, the Maharashtra Revenue Tribunal, Tribunal, Tribunal, us.6, Apex Court, Court, Apex Court, S. Amarjit, the High Court, the High Court, the High Court, Court, Court, the High Court, Court
LOC: Single Judge, Single Judge, Single Judge, Single, Single Judge, Single Judge, Single Judge, Single
FAC: Tahsildar, Tahsildar
QUANTITY: 2.55 acres, 5 km
TIME: 9-1-1989
ORDINAL: Secondly