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2017 DIGILAW 437 (GUJ)

Maniben Nagdabhai Gohel v. State of Gujarat

2017-02-21

A.J.DESAI

body2017
JUDGMENT : A.J. Desai, J. 1. Rule. Learned AGP waives service of notice of Rule on behalf of respondents. 2. By way of the present petition under Article 227 of the Constitution of India, the petitioners - legal heirs of original plaintiff have challenged the order dated 06.08.2014 passed by the learned 4th Additional District Judge, Junagadh below Exh. 1 and Exh. 9 in Regular Civil Appeal No. 17 of 2001 and prayed to restore Regular Civil Appeal to its original file and hear the appeal on merits. 3. Brief facts arise from the record are as under: 3.1 The original petitioner filed Regular Civil Suit No. 57 of 1989 in the Court of leaned Civil Judge (S.D.), Junagadh against the present respondents for declaration and permanent injunction. The said suit was dismissed by the learned 4th Civil Judge (S.D.) on 19.02.2001. The said decision was carried further by the original plaintiff by way of filing Regular Appeal No. 17 of 2001 in the Court of learned Additional District Judge, Junagadh. The matter was admitted and kept of further hearing. 3.2 Notice from the Registry of the Appellate Court was served to the learned advocate appearing for the appellant and therefore, he wrote a letter to the appellant to remain present for hearing. At that time, the present petitioners came to know about the appeal filed by the predecessor and therefore, they approached the advocate and informed that the appellant - original plaintiff had died during pendency of the appeal on 22.12.2006. 3.3 Having received the above information, the learned advocate filed an application for bringing the legal heirs on record at Exh. 9 on 10.08.2007 before the Court of learned Additional District Judge, Junagadh. The said application at Exh. 9 came to be heard by the learned 4th Additional District Judge, Junagadh, which was dismissed on 06.08.2014. In view of the order passed in the application at Exh. 9, the order below Exh. 1 i.e. in Appeal was also passed and dismissed the appeal. 3.4 Hence, this petition. 4. Ms. Venu Nanavaty, learned advocate appearing for the petitioners, would submit that the Appellate Court has committed an error in dismissing the appeal only on the ground that a separate application under Section - 5 of the Limitation Act for condoning the delay in bringing legal heirs on record in appeal was not filed. By taking me at Exh. 4. Ms. Venu Nanavaty, learned advocate appearing for the petitioners, would submit that the Appellate Court has committed an error in dismissing the appeal only on the ground that a separate application under Section - 5 of the Limitation Act for condoning the delay in bringing legal heirs on record in appeal was not filed. By taking me at Exh. 9, she would further submit that the details of the legal heirs were mentioned in the application at Exh. 9 and specific prayer was also made to condone the delay in bringing the legal heirs on record and the reasons were also assigned. She would further submit that the petitioners are residing in the disputed residential house since number of years and if the appeal is not heard on merits, great prejudice shall be caused to them. She would further submit that the trial Court ought to have considered the fact that there was sufficient cause in filing the application at a belated stage and when specific contentions were raised even in the application about condonation of delay, the trial Court ought to have allowed the application. In support of the case, she relies upon the case Mithalal Dalsangar Singh and Ors. V. Annabai Devram Kini & Ors. reported in (2003) 10 SCC 691 . She would, therefore, submit that the petition be allowed. 5. On the other hand, Ms. Rekha Patel, learned AGP, opposed the petition and submitted that the Appellate Court has not committed any error in rejecting the application. By relying upon the decision in case of Makvana Udaji Jehaji V. Makvana Parthaji Punjaji reported in 2012 (3) GLR 2354 , she would submit that the present petitioners should have filed separate application for condonation of delay along with the application for bringing the legal heirs. 6. I have heard learned advocates appearing for the respective parties and perused the application filed by the petitioners at Exh. 9 and the impugned order below Exh. 9. 7. It appears from the said application that the petitioners have referred about receiving the knowledge of preferring the appeal by the original plaintiff with regard to the house in which they are residing. It also appears that the details of the legal heirs were submitted in para - 2 of the application and a specific request was made to condone the delay. It also appears that the details of the legal heirs were submitted in para - 2 of the application and a specific request was made to condone the delay. In view of the above background, in my opinion, the decision relied upon by the learned advocate for the petitioners in case of Mithalal Dalsangar Singh (supra) would be applicable. In the above-referred decision, the Hon'ble Supreme Court has held in para Nos. 8, 9 and 10 as under: "8. In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. 9. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. 9. The Courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub-rule (1) of Rule (9) of Order 22 and of Section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. 10. In the present case, the learned trial Judge found sufficient cause of condonation of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. In fact, the Division Bench has not even reversed that finding; rather the Division Bench has proceeded on the reasoning that the suit filed by three plaintiffs having abated in its entirely by reason of the death of one of the plaintiffs, and then the fact that no prayer was made by the two surviving plaintiffs as also by the legal representatives of the deceased plaintiff for setting aside of the abatement in its entirety, the suit could not have been revived. In our opinion, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the Court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayers made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirely even though there was no specific prayer made and no specific order of the court passed in that behalf." 8. It is pertinent to note that the Appellate Court rejected the application for bringing the legal heirs on record in which prayer for condoning the delay was also made and on that basis, the appeal came to be dismissed as not maintainable. 9. Therefore, the decision in case of Makvana Udaji Jehaji (supra) relied upon by the respondent is not applicable since the facts of the present case are different from the facts of the above-referred decision. Hence, the present petition is allowed. The order dated 06.08.2014 passed by the learned 4th Additional District Judge, Junagadh below Exh. 1 and Exh. 9 in Regular Civil Appeal No. 17 of 2001 is hereby quashed and set aside. The delay for bringing the legal heirs on record is hereby condoned. The petitioners are ordered to be joined as legal heirs in the appeal. The appeal is restored to its original file and the abatement of the appeal is set aside. The Appellate Court hereby directed to decide the appeal on merits. 10. Rule is made to the aforesaid extent.