Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 104 (GUJ)

Gordhanbhai Vitthalbhai v. Samuben Vitthalbhai

2023-01-12

VAIBHAVI D.NANAVATI

body2023
ORDER : 1. By way of the present writ-petition, the petitioner herein is aggrieved by the impugned order dated 22.11.2022 (Annexure-A) passed by the Principal Senior Civil Judge, Botad on application below Exh.53 and Exh.54 in Regular Civil Suit No. 229 of 2015. 2. The said applications came to be filed by the original plaintiff for bringing the legal heirs of respondent - defendant no.1 – Savjibhai Vitthalbhai and respondent - defendant no.6 – Lilaben Vithhalbhai who expired on 20.11.2019 and 08.12.2021 respectively, pending the suit proceedings. 3. The concerned Court by the impugned order dated 22.11.2022 allowed the application for bringing the legal heirs of deceased respondent nos. 1 and 6 respectively. 4. Being aggrieved by the order permitting the legal heirs of the respondent nos. 1 and 6 respectively on record, the writ-petitioner has approached this Court for quashing and setting aside the said order passed by the concerned Court on the ground that the plaintiff was required to prefer an application seeking condonation of delay in bringing the legal heirs on record and that the Suit stood abated qua the respondent nos. 1 and 6, and therefore, an application seeking setting aside the abatement was also required to be filed by the plaintiff. 5. During the course of hearing, Mr. Pahwa, learned advocate appearing for the writ-petitioner has placed on record the judgment and order dated 14.07.2022 passed in Special Civil Application No. 3964 of 2018 arising out of the same Regular Civil Suit No. 229 of 2015, wherein, the legal heirs of the respondent nos. 1 and 6 were permitted to be brought on record, by an order dated 06.01.2022. 6. Mr. Pahwa, learned advocate has relied upon the decision reported in the case of Deepak Verma v/s. Daya Nand reported in 2019 SCC Online Del 8591. 7. The concerned Court while passing the order impugned dated 22.11.2022 below Exh.53 and 54, considered the following aspects, while allowing the application for bringing the legal heirs on record, which reads thus : “2. As the respondent No.1 and 6 have died, the present application for the plaintiff under Order 23 Rule 3 of C.P.C. is submitted to join their heirs as a party. As the respondent No.1 and 6 have died, the present application for the plaintiff under Order 23 Rule 3 of C.P.C. is submitted to join their heirs as a party. Since the heirs of the respondent No.1 and 6 have not been joined as a party in time, an application of Exhibit-54 for the respondent No.3 is submitted requesting to abate the present suit against the respondent No.1 and 6. The plaintiff has submitted its reply vide Exhibit-55 to state that, Civil Application No.3964/2018 was filed in the Gujarat High Court against the order of Exhibit-48 and the High Court ordered to stay the proceeding and joined the heirs of the deceased in the proceeding of the Gujarat High Court. The Gujarat High Court passed the final order on 14/07/2022. Thereafter on the first hearing, the application has been submitted to this Court. Therefore, as the Gujarat High Court has issued a stay, no procedure to join the heirs was carried out in this Court and therefore, there does not remain a question of condonation of delay or abatement and therefore, it has been prayed to reject the application of Exhibit-54. 7. Upon considering the application, record and submissions, the present suit has arisen between the plaintiff and respondent regarding share in ancestral property. It is undisputed fact that aggrieved with the order vide Exh-48 related to the application as to who will cross-examine the examination of chief of the plaintiff vide Exh-43, the respondent no. 1 to 3 filed Civil Application no.3964/2018 before the Hon'ble Gujarat High Court, wherein stay on proceeding was ordered on 02/05/2018 by the Hon'ble Gujarat High Court till final order. Thereafter, the aforesaid stay was vacated as final order was passed by the Hon'ble Gujarat High Court on 14/07/2022. Further, in the application vide Exh-54, respondent no.3 in this case has stated that he joined the heirs of respondent no.1 in the proceeding of Hon'ble Gujarat High Court. Thus, upon considering the said fact, no further proceeding was conducted since stay was ordered by the Hon'ble Gujarat High Court and heirs of the deceased were joined in the petition filed by respondent no.1 and others. Thus, the heirs of the deceased were joined in the proceeding of the aforesaid case at the Hon'ble Gujarat High Court and the proceeding was not conducted without the heirs of the deceased. Thus, the heirs of the deceased were joined in the proceeding of the aforesaid case at the Hon'ble Gujarat High Court and the proceeding was not conducted without the heirs of the deceased. As the stay was vacated in the aforesaid case, the plaintiff in this case has immediately submitted application for joining heirs. 8. Considering the dispute between the party, it needs to be taken into consideration that, whether the suit against the Respondent No.1 and 6 stands abated or not, as the Respondent No.1 and 6 have died during the period the matter has been stayed by the Hon’ble Gujarat High Court and the application for joining heirs has not been given because of the stay? Secondly, whether an application for delay condonation needs to be given or not for joining heirs in a suit? In the present case, when the proceedings before the Hon’ble Gujarat High Court were going on, the heirs have joined as parties and the proceedings are related to the present case only. Therefore, it did not occur that the proceedings were furthered without joining the heirs. Immediately after the stay was vacated, the plaintiff in the present case has given an application for joining the heirs as parties. Moreover, the Learned Advocate for the Respondent No.4, 5 and 6 has stated about not having any objection against it. Therefore, I am of the opinion that, in the present case, as the heirs have joined as parties in the same matter, a stay has been granted by the Hon’ble High Court and the application for joining parties for the heirs has been given immediately after the stay was vacated, the application for Delay Condonation or Abatement Set Aside is not required in the present matter. 11. Therefore, as discussed above, the present application being acceptable, the following order is issued in the interest of justice. -: ORDER :- The present application is allowed. It is ordered to the Plaintiff that he shall give an application for joining the heirs as parties, produced the revised application and provide a copy of the amended application to the Respondents. No order as to cost.” 8. -: ORDER :- The present application is allowed. It is ordered to the Plaintiff that he shall give an application for joining the heirs as parties, produced the revised application and provide a copy of the amended application to the Respondents. No order as to cost.” 8. At this stage, it is apposite to refer to the judgment of the Hon’ble Supreme Court in the case of Sesh Nath Singh v. Baidyabati Sheoraphuli Cooperative Bank Limited reported in AIR 2021 SC 2637 , relevant para 61 to 65 and 102 reads thus : “61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute ‘sufficient cause’ or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party. 62. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are required to strike a balance between the legitimate rights and interests of the respective parties. 63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. 63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application. 64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application. 65. As observed above, Section 238A makes the provisions of the Limitation Act applicable to proceedings under the IBC before the Adjudicating authority and the Appellate Authority (NCLAT) ‘as far as may be’. Section 14(2) of the Limitation Act which provides for exclusion of time in computing the period of limitation in certain circumstances, provides as follows: “14. Exclusion of time of proceeding bona fide in court without jurisdiction. — (1) ….. Section 14(2) of the Limitation Act which provides for exclusion of time in computing the period of limitation in certain circumstances, provides as follows: “14. Exclusion of time of proceeding bona fide in court without jurisdiction. — (1) ….. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing ‘sufficient cause’. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay.” 9. In the case of Bhagwan Swaroop and others v/s. Mool Chand and others reported in AIR 1983 SC 355 , relevant paras read thus : “4. It is true that it was incumbent upon the appellant to implead the heirs and legal representatives of deceased respondent No. 1 in time. It is equally true that the appellants were negligent in moving the proper application. We would not question the finding of the High Court that appellant Nos. 2, 3 and 4 knew about the death of the deceased respondent No. 1. This being a suit for partition of joint family property, parties are closely interrelated and it is reasonable to believe that at least some of the appellants must have attended the funeral of deceased respondent No. 1, as contended on behalf of the contesting respondent No. 2. There is some force in the contention that when a specific provision is made as provided in Order 22, R. 4, a resort to the general provision like Order 1, Rule 10 may not be appropriate. There is some force in the contention that when a specific provision is made as provided in Order 22, R. 4, a resort to the general provision like Order 1, Rule 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh v. Election Tribunal, Kotah, this Court observed that a Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipar Das v. Bimal Krishna Sen. 5. xxx 6. Having meticulously examined the contention advanced by the learned Counsel on behalf of respondent No. 2 Mool Chand, who is the only contesting respondent, we are satisfied that the application made by the appellants as well as the one moved by the heirs and legal representatives of deceased respondent No. 1 should have been allow-ed and the heirs and legal representatives of deceased should nave been substituted after setting aside abatement and condoning the delay in making the application. 7. As there is some negligence on behalf of the appellants in moving the application in time, original second respondent Mool Chand must be compensated by awarding him costs. 8. Accordingly, we allow this appeal set aside the judgment of the High Court dated 27th Jan., 1982 abating First Appeal No. 67 of 1972 preferred by the present appellants. The application made by the appellants before the High Court as well as the one made by the heirs and legal representatives of deceased respondent No. 1 are allowed and the heirs and legal representatives of deceased respondent No. 1 are substituted and brought on record after setting the abatement and condoning the delay in making the application. The matter is remitted to the High Court for disposal on merits. Appellants shall pay as and by way of costs Rs. 1,000/- to respondent No. 2 Mool Chand. 18. In the peculiar facts and circumstances of this case, bearing in mind that the appeal is from a preliminary decree in a partition suit in which the heirs and legal representatives of the deceased respondent had also made an application, though 'misconceived, for being substituted and brought on record. I do not propose to press my doubts to the point of dissent. I do not propose to press my doubts to the point of dissent. Hearing of the appeal on merits, in the instant case, cannot cause any irreparable prejudice to the parties though there can be no doubt that partition proceedings will have to be unnecessarily prolonged.” 10. At this stage, it is apposite to refer to the decision in the case of M/s. Garment Craft v/s. Prakash Chand Goel reported in AIR 2022 SC 422 , the Hon’ble Supreme Court in Para-18 held thus : “18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:- “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:- “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 11. While exercising the supervisory jurisdiction under Article 227 of the Constitution of India, the order passed by the Court below does not call for any interference. More particularly, in view of the fact that the Court below considered whether the Suit against the respondent nos. 1 and 6 would stand abated, as the respondent nos. 1 and 6 expired during the period, when the suit proceedings were stayed by this Court and whether an application for condonation of delay for joining legal heirs of the respondent nos. 1 and 6 were required to be filed. The Court below considering the fact that the proceedings before this Court were going-on, the legal heirs of the respondent nos. 1 and 6 were required to be filed. The Court below considering the fact that the proceedings before this Court were going-on, the legal heirs of the respondent nos. 1 and 6 having been joined as parties and the same are related to the present case, the concerned Court held that it is not a case where the proceedings were continued without joining the legal heirs, as referred above, once the stay came to be vacated i.e. once the final order came to be passed by the coordinate bench in Special Civil Application No. 3964 of 2018, the respondents filed an application under Order-22 Rule-3 of the Code of Civil Procedure on on 29.07.2022 i.e. soon after, the petition came to be disposed of on 14.07.2022, an application for bringing the legal heirs on record came to be filed on 29.07.2022, which came to be allowed by the Court below by the impugned order. Further the said application for bringing the legal heirs of the present respondent nos. 1 and 6 before this Court were never objected. In view thereof, the concerned Court permitted the legal heirs of the present respondent nos. 1 and 6 to be joined in the suit proceedings and further held that the application for delay condonation or abatement or setting aside the abatement was not required to be preferred in the said Suit. Even otherwise there is no bar to exercise by the Court it’s discretion to condone the delay, in absence of any formal application seeking condonation of delay. Considering the findings arrived at by the concerned Court, this Court has considered the same and the position of law as referred above, no interference is called for to exercise its supervisory jurisdiction under Article-227 of the Constitution of India. For the aforesaid reason, no interference is called for in the impugned order and the present writ-petition stands dismissed, accordingly.