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2024 DIGILAW 1575 (GUJ)

Dilipbhai Kantilal Patel v. Udaji Kanaji Thakor

2024-07-18

BIREN VAISHNAV, NISHA M.THAKORE

body2024
ORDER : Nisha M. Thakore, J. ORDER IN CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2020: 1. With the consent and joint request of learned advocates for the respective parties, this matter is taken up for final hearing. 2. We have heard learned advocate Mr. Varun Bharda appearing for Mr. S.P. Majmudar, learned advocate on record for the applicants, learned Senior Advocate Mr. Shalin Mehta appearing with Ms. Aditi Raol, learned advocate on record for opponent nos.6 to 10 and learned Senior Advocate Mr. Anshin H. Desai appearing with learned advocate Ms. Venu Nanavati for opponent no.11. 3. This application is filed by the original appellants/plaintiffs for bringing the legal heirs of the applicant/appellant- Kantilal Joytaram Patel in Civil Application No.1 of 2018 in F/First Appeal No.11156 of 2018 (registered as “R/First Appeal No. 2597 of 2024”). The original appellant- Kantilal Joytaram Patel is reported to have passed away on 04.11.2019 pending the restoration captioned appeal, which stood dismissed for default on 10.04.2018 and was subsequently restored on 29.04.2022. 4. Learned advocate for the applicant has invited our attention to the averments made in the application and has submitted that legal heirs and representatives of the deceased original appellant no.1 are already brought on record i.e. applicant nos.2 to 5. In such circumstances, there is no delay in preferring the present application and has, therefore, urged before us to allow this application and to permit the amendment to be carried out in the cause title to reflect the name of applicant nos.2 to 5 as also the legal heirs and representatives of deceased original appellant no.1. The reliance was placed on the copy of pedigree, which is annexed along with this application. 5. Learned advocates appearing for the respective opponents as such had not objected to grant of the present application. 6. Considering the fact that deceased applicant no.1 is already represented through the applicant nos.2 to 5, who are the legal heirs and representatives of the deceased applicant no.1, we are inclined to allow the present application. Since the restoration application is already disposed of, the legal heirs and representatives of the deceased applicant no.1 are permitted to be brought on record in captioned applications as well as captioned appeal. 7. The present civil application stands disposed of, in aforesaid terms. ORDER IN CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. Since the restoration application is already disposed of, the legal heirs and representatives of the deceased applicant no.1 are permitted to be brought on record in captioned applications as well as captioned appeal. 7. The present civil application stands disposed of, in aforesaid terms. ORDER IN CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2023 AND CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2023: 1. Since all these applications essentially pertains to bringing heirs and legal representatives of deceased opponent nos.1 and 2, they are heard together and decided by this common order. These applications were taken up for hearing while hearing the main First Appeal on merits as the learned advocates for the respective parties have agreed to address the court on the merits of the case in the captioned First Appeal. Thus, civil applications are heard along with the main First Appeal. 2. Civil Application (For Condonation Of Delay) No. 2 of 2023 is preferred under Section 5 of the Limitation Act seeking condonation of delay of 5860 days caused in bringing the legal heirs and representatives of opponent nos.1 and 2 and with a prayer to set aside the abatement, if any, in the facts of the case. 3. Civil Application (For Bringing Heirs) No. 1 of 2023 is filed seeking permission to join the proposed heirs and legal representatives of deceased opponent nos.1 and 2 in Civil Application No.1 of 2020 as well as in Civil Application No.1 of 2018 in F/First Appeal No.11156 of 2018 (registered as “R/First Appeal No. 2597 of 2024”). 4. We have heard learned advocate Mr. Varun Bharda appearing for Mr. S.P. Majmudar, learned advocate on record for the original appellants/plaintiffs, learned Senior Advocate Mr. Shalin Mehta appearing with Ms. Aditi Raol, learned advocate on record for opponent nos.6 to 10 and learned Senior Advocate Mr. Anshin H. Desai appearing with learned advocate Ms. Venu Nanavati for opponent no.11. 5. Learned advocate for the applicants has moved proposed draft amendment seeking permission of this Court to delete the applicant nos.1.1 and 1.2 from the memo of captioned civil applications as the said applicants have not been joined, in view of the pending civil application no.1 of 2020, wherein the applicants-original appellants have sought prayer to implead the heirs and legal representatives of the deceased original appellant no.1. 6. 6. Considering the fact that today we have granted Civil Application No.1 of 2020, the proposed draft amendment is allowed and the learned advocate is directed to carry out the appropriate amendment in the cause title of the present applications as well as captioned First Appeal. 7. Learned advocate for the applicants, at the outset, has submitted that though there is a huge delay of 5860 days in preferring the application for bringing legal heirs and representatives of the deceased opponent nos.1 and 2 herein, the same is not due to any negligency on the part of the applicants. It is submitted that there was no mala fide intention on the part of the applicants to delay the proceedings by not preferring the application for bringing heirs of deceased opponents on record. The reliance was placed on the order dated 03.03.2023, whereby this Court directed issuance of notice in Civil Application No.1 of 2020 filed by the present applicants to bring on record the heirs and legal representatives of the deceased appellant no.1. It was only when the notice issued upon the present opponent nos.1 and 2 was reported to be unserved as expired, the present applicants became aware about the fact of the death of said opponents. In the process to gather the details of the heirs and legal representatives of the said deceased opponents, the copies of the death certificates of the deceased opponents were collected, whereby it was learnt that opponent no.1-Kantilal Joytaram Patel had passed away on 04.11.2019 and opponent no.2-Baldevji Kanaji Thakore had passed away on 15.01.2005. Since the cause of action against the heirs and legal representatives of the deceased opponents survived, the present applications were filed seeking permission of this Court to bring on record the heirs of deceased opponents. 8. The aforesaid submissions of learned advocate for the applicants were objected by the learned senior advocates appearing for the respective contesting opponents. It was submitted that there was a huge delay of 5860 days and no sufficient cause has been pointed out by the applicants so as to condone such huge delay. According to learned advocates, the applicants were negligent and the opponents cannot suffer for the negligency of the applicants. 9. It was submitted that there was a huge delay of 5860 days and no sufficient cause has been pointed out by the applicants so as to condone such huge delay. According to learned advocates, the applicants were negligent and the opponents cannot suffer for the negligency of the applicants. 9. Countering the aforesaid submissions of learned advocates for respective opponents, learned advocate for the applicants has further submitted that in the proceedings before the trial court, the original owners have chosen not to contest the suit. In fact, upon application preferred by the present opponent nos.6 to 10 and opponent no.11 herein, under Order VII Rule 11(d) of the Civil Procedure Code, (for short,” the Code”), the suit was dismissed on the ground of limitation and res judicata. 9.1 It was further submitted that in fact, as pointed out by learned Senior Advocate appearing for the opponent no.11, the first order decreeing the Regular Civil Suit No.711 of 1996 in favour of the present applicants/original plaintiffs by order dated 27.01.2009 was subject matter of challenge in appeal being Regular Civil Appeal No.42 of 2009 before the District Court. 9.2 The attention of this Court was invited to the said appeal memo to contend that they were misguided by the fact that deceased- Baldev was alive. It was further submitted that opponents/original defendants have suppressed the said material fact that Baldevji Kanaji Thakore had expired on 15.01.2005, which was prior to instituting the said appeal. In such circumstances, the appeal could not have been filed on behalf of a dead person and the order is a nullity in eye of law. 9.3 The reliance was placed on the decision in the case of Commissioner, Corporation of the City of Bangalore, Bangalore and others vs. S. Ranganayaki Setlur and another reported in 1993 SCC OnLine Kar 78 and in the case of Amar Kaur and others vs. Sadhu Singh and others reported in 1960 SCC OnLine Punjab & Haryana High Court Page 139. 9.4 The aforesaid decisions clearly held that the person who is dead and had no existence either in fact or in law is incapable of instituting the suit or an appeal or performing any act. By making aforesaid submissions, learned advocate has prayed to take liberal approach and to adjudicate the issue involved in the present appeal on merits. 10. 9.4 The aforesaid decisions clearly held that the person who is dead and had no existence either in fact or in law is incapable of instituting the suit or an appeal or performing any act. By making aforesaid submissions, learned advocate has prayed to take liberal approach and to adjudicate the issue involved in the present appeal on merits. 10. Having heard the learned advocates for the respective parties and having perused the averments made in the application and the record, it is evident from the death certificates that opponent no.1- Kantilal Joytaram Patel had passed away on 15.01.2019, whereas the application seeking condonation of delay being Civil Application No.1 of 2018 seeking condonation of delay 232 days caused in presenting the captioned First Appeal, which was preferred on 15.03.2018. In the captioned appeal, the challenge is to the order dated 29.04.2017 passed by learned Senior Civil Judge dismissing the suit under Order VII Rule 11(a)(d) of the Code. Thus, there is a delay of 5860 days with regard to the opponent no.2- Baldevji Kanaji Thakore, who had expired on 15.01.2005, which is even prior to filing of the Civil Suit No.42 of 2009, which was registered on 01.05.2017. 11. Looking to the nature of the dispute involved, the proposed heirs and legal representatives of the respective deceased opponents are necessary and proper party, to be joined in the present appeal. However, as evident from the record, the deceased opponent nos.1 and 2 belong to a family who represented the original owners and who have parted with the suit land by executing subsequent register sale deed in favour of the original defendant nos.6 to 10, who have in turn executed the sale deed in respect of the suit land in favour of the original defendant no.11. It is further evident from the record that the application filed under Order VII Rule 11 of the Code was presented at the instance of the aforesaid subsequent purchasers, based on which the suit came to be dismissed. It further transpired that the notice issued upon the opponent nos.3 to 6 has been duly served. However, they have chosen not to contest the present appeal by engaging a lawyer or entering their appearance. It further transpired that the notice issued upon the opponent nos.3 to 6 has been duly served. However, they have chosen not to contest the present appeal by engaging a lawyer or entering their appearance. In such circumstances, we are inclined to take a liberal approach in condoning the delay and further permitting the heirs and legal representatives of opponent nos.1 and 2 to be brought on record in the present proceedings. 12. We are also guided by the legal position as laid down by the Hon’ble Supreme Court in the case of Perumon Bhagvathy Devaswom Perinadu vs. Bhargavi Amma (D) Thr. Lrs reported in 2008 (8) SCC 321 . In this case, the Court has referred to various decision of Hon’ble Apex Court and has thereby laid down the principles to be followed while dealing with an application filed under the provisions of Order XXII of the Code along with an application under Section 5 of the Limitation Act for condoning the delay in filing the application for bringing the heirs and legal representatives on record. In paragraph no.13 of the aforesaid decision, the Hon’ble Supreme Court has observed as under : “The principles applicable in considering applications for setting aside abatement may thus be summarized as follows : (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” 13. The Court had also taken into consideration the amendment brought in the aforesaid provision of the Code, more particularly, Rule 10(a) of the Code, which puts obligation on the pleader appearing for the party to the suit to inform the court about the death and the court is, thereafter, required to give notice of such death to the other party. Applying the aforesaid legal principles laid down by the Hon’ble Supreme Court, the lack of knowledge of the death of the opponents could not be attributed because of negligency on the part of the applicants/original appellants, neither it can be termed as lack of bona fides of the applicants who intentionally tried to prolong the suit. 14. It is not even the case of the opponents that the applicants have acted in a mala fide manner by not bringing the heirs and legal representatives on record. 14. It is not even the case of the opponents that the applicants have acted in a mala fide manner by not bringing the heirs and legal representatives on record. Even otherwise, prolonging of the proceedings would not help the applicants to pursue their proceedings, more particularly, when said suit was dismissed at the threshold without there being any adjudication by conducting full- fledged trial. 15. As pointed out by learned senior advocates appearing for the respective contesting opponents undoubtedly the delay is of huge length. However, the length of delay is relevant factor to be considered while considering an application for condonation of delay. It is the sufficient cause explained by the applicants which constitutes a relevant criteria for setting aside the abatement and for condonation of delay. 16. Even otherwise, the Hon’ble Supreme Court in catena of decisions, has laid down that the Court while considering the application under Section 5 of the Limitation Act, will consider the facts and circumstances not for taking to strict and pendantic stand, which may result into injustice, but the same is to be considered from taking a view which will advance the cause of justice. It is held that the provisions of Limitation Act should be considered in a broad manner. 17. Considering the overall explanation offered by the applicants, which is otherwise not controverted by the other side by pointing out any contradictory material, we are inclined to accept the explanation offered to be a sufficient cause which has contributed to the delay in preferring the application for bringing heirs and legal representatives of opponent nos.1 and 2. Thus, the application seeking condonation is hereby allowed. Consequently, the abatement qua opponent no.1, who had even otherwise expired during the captioned appeal, is hereby set aside. 18. The Civil Application for bringing heirs and legal representatives of the respective deceased opponent nos.1 and 2 is hereby allowed. 19. Registry is directed to carry out necessary amendment in the cause title of the Civil Application No.1 of 2018 as well as in the cause title of captioned First Appeal.