C/FA/2385/2008 ORDER DATED: 22/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2385 of 2008
With
CIVIL APPLICATION (FOR ABATMENT) NO. 1 of 2019
In R/FIRST APPEAL NO. 2385 of 2008
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2022
In R/FIRST APPEAL NO. 2385 of 2008
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CHAGANLAL KANJIBHAI AGIYA
Versus
VIRABHAI RANDHIRBHAI PARMAR
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Appearance:
MR KETAN I ACHARYA, ADVOCATE WITH
MR.B.K.RAJ, ADVOCATE (2415) for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 1
MR RAHUL K DAVE(3978) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 22/02/2023
ORAL ORDER
1. The present appeal is filed against the judgment and order dated 28.12.2007 passed in Special Civil Suit No.79 of 2021 by the Additional Senior Civil Judge, Veraval.
2. The subject matter of the suit is a land bearing Survey No.57A of Village:Bhalpara, Tal:Veraval, Dist:Junagadh. The appellant before the Court is the original defendant against whom the respondent (original plaintiff) had filed suit in connection with the subject land. The Civil Judge had allowed the suit directing specific performance of the sale agreement executed by the defendant in favour of the plaintiff and further Page 1 of 11 Downloaded on : Tue Feb 28 20:32:46 IST 2023 C/FA/2385/2008 ORDER DATED: 22/02/2023 directions to the defendant to deposit an amount of Rs.51,000/-.
3. It appears that the judgment and order was a subject matter of challenge in the present appeal, wherein this Court while admitting the appeal in order dated 21.08.2008 had also passed a separate order in the Civil Application, wherein the appellant was directed to deposit an amount, which was received by the appellant from the respondent and such amount was to be deposited within a period of 4(Four) weeks. Similarly, the respondent was also directed to deposit an amount of Rs.51,000/- along with interest at the rate of 12% per-annum from the date of agreement to sale which comes to Rs.95,525/- which is deposited. On the basis of this and other conditions, the interim-relief was granted staying operation of the impugned judgment and order. In the same order, it was also observed that in case the applicant fails to deposit an amount as directed, the interim-relief granted would stand automatically vacated.
4. At this stage, it is necessary to refer to the subsequent development, as the appellant herein failed to deposit an amount as directed by this Court, and therefore, the interim-relief thus, granted stood automatically vacated.
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C/FA/2385/2008 ORDER DATED: 22/02/2023
5. It appears that by the interim-direction, the appellant was required to deposit an amount of Rs.9 lacs (approx) which the appellant had failed. Though the interim-relief granted stood automatically vacated by way of abandon caution, the respondent herein moved a Civil Application No.2 of 2019 for vacating the interim-relief.
6. The Civil Application No.2 of 2019 came to be disposed of in favour of the respondent herein (original plaintiff) vide order dated 18.06.2019, wherein this Court had specifically observed that though the appellant was directed to deposit an amount way back on 28.01.2008, the appellant has chosen not to deposit such amount even after the period of almost 10 years. The Court, therefore, ordered the vacating of the interim relief.
7. It is on record that immediately after the impugned judgment and order, the respondent had filed Special Darkhast No.18 of 2009 on 14.10.2009, which was kept pending in view of filing of the present appeal and the conditional stay being granted. However, when no proceedings took place before Executive Court under the orders of the stay granted by this Court, the respondent had moved a separate application for vacating the interim-relief, as is mentioned in the preceding Page 3 of 11 Downloaded on : Tue Feb 28 20:32:46 IST 2023 C/FA/2385/2008 ORDER DATED: 22/02/2023 paragraphs. After the order dated 18.06.2019, wherein the interim-relief was vacated once-again the execution application was pursued by the respondent, however, in the meantime, it was found that the sole respondent-Virabhai Randhirbhai Parmar had expired on 01.05.2014, and therefore, on 16.06.2014, advocate on behalf of the respondent intimated the Registry of this Court as well as learned advocate for the appellant about the demise of the sole respondent. 7.1 The record of the Court would indicate that pursuant to such intimation given to the Registry of this Court by the learned advocate for the appellant in view of Order 22 Rule 10(a) submission was made and placed before this Court. The record also indicated that on 8 (Eight) occasions, the matter was adjourned from one date to another, however, no application was coming forth for bringing the legal heirs on record.
8. In view of Order 22 Rule 4(3), the appeal would abate against the sole respondent, who has reportedly expired. The appeal, therefore, had abated by operation of the provisions, however, the respondent herein moved a separate application i.e. Civil Application No.1 of 2019 seeking declaration of the abatment so as to proceed ahead with the execution proceedings. Page 4 of 11 Downloaded on : Tue Feb 28 20:32:46 IST 2023
C/FA/2385/2008 ORDER DATED: 22/02/2023 It was categorically submitted that though the interim-relief stood vacated and though the appeal against the sole respondent, who has expired as abated, the Executing Court was not proceeding ahead with the proceedings, and therefore, the Civil Application was filed though not necessary under the law.
9. It appears that after filing of the application for abatment, it is the appellant, who thereafter, filed a Civil Application for bringing legal heirs of the sole respondent on record. The said Civil Application No.1 of 2022 was filed with the prayer which would read as under:-
"6(A) Be pleased to allow this application and permitted to bring legal heirs of the deceased on record as respondent nos.1/1 to 1/3 in the main First Appeal No.2385 of 2008.
(B) ..."
10. In the aforesaid application, an order came to be passed on 01.09.2022 in view of Rule 12(a) Chapter 2 of Part-I of Gujarat High Court Rules and in view of the aforesaid order, it appears that the appellant proposed a draft amendment dated 07.12.2022. The amendment is placed on record, wherein the short amendment would read as under:-
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C/FA/2385/2008 ORDER DATED: 22/02/2023 "1. The applicant has filed this application under Civil Procedure Code. The applicant files this application for adding the below mention prayer on the main Civil Application:- (C) Condone the delay of _____ days in filing the aforesaid Civil Application for bring the legal heirs of First Appeal in the interest of justice and be pleased to set aside the abatment of First Appeal in the interest of justice."
2. Kindly grant this application and give necessary orders."
11. A perusal of such Draft Amendment would indicate that the same is not on the affidavit of the appellant nor does it contain any detail regarding the reason for which the delay has occurred. There is no explanation offered for the delay that has occurred in filing the application for bringing legal heirs on record. On the other hand, the Court indicates and as is observed in the proceding paragraphs in compliance of the Order 22 Rule 10(a), the respondent had brought to the notice of this Registry as well as the appellant about the factum of death of the sole respondent way back on 16.06.2014 and the submissions made by the Registry, which would indicate that the appellant was very much aware of the factum of death of sole respondent.
12. During the Course of argument, it is submitted that Page 6 of 11 Downloaded on : Tue Feb 28 20:32:46 IST 2023 C/FA/2385/2008 ORDER DATED: 22/02/2023 though no grounds are mentioned in the Civil Application for bringing legal heirs on record as well as for draft amendment to condone the delay, but it is orally submitted that on account of negligence of the advocate, who was appearing at the relevant time on behalf of the appellant that the issue of expiry of the sole respondent had escaped the attention of the appellant, and therefore, after the change in the advocate, the present application is made. The Court has verified from the record that the present advocate had filed formal appearance on 30.04.2019 by filing Vakalatnama at the same date still, the matter was at submission stage for bringing legal heirs on record till 26.03.2015. Hence, this contention is also not accepted. It is also submitted that only on account of the execution proceedings, which were attended by the appellant that the appellant came to know about the demise of the sole respondent after January-2020.
13. Learned advocate for the appellant has also argued that the appellant had filed a separate proceedings against the execution proceedings by way of Special Civil Application No.1669 of 2023 which came to be disposed of vide order dated 02.02.2023. It is submitted that the said petition came to be Page 7 of 11 Downloaded on : Tue Feb 28 20:32:46 IST 2023 C/FA/2385/2008 ORDER DATED: 22/02/2023 disposed of only with a view to move the Court in the pending First Appeal by filing a separate application for bringing legal heirs on record and as the permission was granted by this Court. In the proceedings of S.C.A., the application for bringing the legal heirs on record ought to have considered in light of the order passed in S.C.A. in connection with the execution proceedings. The perusal of the order dated 02.02.2023 does not support the contentions raised herein above.
14. Considering the provisions of Order 22 and the nature of application made before this Court for bringing heirs on record devoid of any details including for condoning the delay, which is required to be condoned while considering the application for bringing legal heirs on record and for setting aside the abatement, the Court does deem it fit to entertain the application for bringing legal heirs on record.
15. Learned advocate for the applicant - original defendant has made an attractive argument based on various pronouncements of the Apex Court in connection with taking a technical view of the matter. He has relied upon the decision of the Apex Court in case of Sardar Amarjit Singh Kalra & Ors. Vs. Pramod Gupta reported in 2003 (3) SCC 272, wherein it is observed Page 8 of 11 Downloaded on : Tue Feb 28 20:32:46 IST 2023 C/FA/2385/2008 ORDER DATED: 22/02/2023 that the procedures are meant to regulate effectively assist and aid the object of doing substantial and real justice and not to foreclose the adjudicatory process which otherwise merits consideration for deciding the rights of the parties. It is famously held that the procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. On similar line, another decision relied upon by the appellant-original defendant is a case of N. Balaji Vs. Virendrasingh & Ors. reported in 2004 (8) SCC 312.
16. At this stage, it would be appropriate to refer to the facts of the appeal where by the impugned judgment and order dated 28.12.2007, the Additional Senior Civil Judge, Veraval had passed an order declaring the plaintiff (respondent herein) entitled for specific performance of sale agreement executed by the defendant in favour of the plaintiff with regard to the subject matter of suit which being certain non-agricultural plots. After the decree in favour of the respondent herein since 2007, after the period of 15 years also, the decree holder is unable to ripe the benefits of decree in his favour, then it cannot be said that the operation of law is too technical and can be disregarded for Page 9 of 11 Downloaded on : Tue Feb 28 20:32:46 IST 2023 C/FA/2385/2008 ORDER DATED: 22/02/2023 enabling the appellant herein to continue the challenge. 16.1 As is indicated herein above, that on several stages, the appellant has failed to comply with the requirement of law, failed to comply with the directions of this Court, and therefore, application of Order 22 to declare the abatement does not remain only technicality, but has to be understood as a provision in favour of the respondent-original plaintiff to ripe the benefit of the decree in his favour way back in the Year-2007.
17. On the other hand, the court may rely upon the decision of the Apex Court in case of Gurnam Singh (D) THR LRS & Ors. Vs. Gurbachan Kaur (D) BY LRS & ORS. reported in 2017 LawSuit (SC) 475, wherein in Paragraph No.18, it is held that the law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".
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C/FA/2385/2008 ORDER DATED: 22/02/2023
18. In so far as the Civil Application No.1 of 2019 filed by the respondent is concerned, it is hereby declared that by operation of the provisions of C.P.C. particularly order 22 Rule 4 & 3, the appeal would abate against the sole respondent, who has reportedly expired.
19. In view of the aforesaid, the Civil Application No.1 of 2019 is allowed. The present appeal is declared to have abated. As a necessary consequence, the appeal also stands dismissed.
20. In view of the order passed in the present two applications, no separate orders are required to be passed in connected Civil Applications and the same would stand dismissed.
(A.Y. KOGJE, J) GIRISH ...
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