C/CA/902/2022 ORDER DATED: 23/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 902 of 2022
In R/CIVIL REVISION APPLICATION NO. 167 of 2023
With
R/CIVIL REVISION APPLICATION NO. 167 of 2023
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HEMENDRA RAMPRASAD SHARMA
Versus
MEHULKUMAR PARSHOTTAMBHAI PATEL
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR RUSHABH R SHAH(5314) for the Respondent(s) No.
1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 23/03/2023
ORAL ORDER
1. With the consent of the learned advocates appearing for the parties, the application for leave to appeal as well as Civil Revision Application both are taken up together for final disposal.
2. By way of present civil revision application, the applicant has challenged the order dated 17.3.2022 passed by Second Additional District Judge, Navsari in Regular Civil Appeal No.24 of Page 1 of 7 Downloaded on : Fri Mar 24 20:42:40 IST 2023 C/CA/902/2022 ORDER DATED: 23/03/2023 2009 and thereby confirming the judgment, order and decree dated 26.2.2009 passed by the learned Additional Civil Judge, Navsari whereby allowed the Regular Civil Suit No.71 of 2006.
3. Without elaborately stating the fact of the matter, in this application for leave to appeal, it is the specific case of learned advocate Mr. Zubin Bharda that original defendant Ramprasad Fodiram Sharma after having failed in Regular Civil Suit No.71 of 2006 as the same was allowed in favour of the original plaintiffs preferred Regular Civil Appeal No.24 of 2009, when the appeal was filed he was alive.
3.1 During pendency of the appeal, the original defendant Ramprasad Fodiram Sharma died and thereafter, his son Hemendra Ramprasad Sharma preferred an application for bringing legal heirs of Ramprasad Fodiram Sharma on record however, the said application remained undecided. During the pendency of the Regular Civil Appeal the plaintiff No.4 also died, for Page 2 of 7 Downloaded on : Fri Mar 24 20:42:40 IST 2023 C/CA/902/2022 ORDER DATED: 23/03/2023 which also an application for bringing legal heirs of Original Plaintiff No.4 on record was preferred by the legal heirs of Ramprasad Fodiram Sharma. However, both these applications remained pending and never decided, though the appeal was decided and held against the Ramprasad Fodiram Sharma.
3.2 According to learned advocate Mr. Zubin Bharda, it was an error committed by the Appellate Court that despite the applications for bringing legal heirs of Original Plaintiff and Defendant were their on record, without passing any order on those two applications, the appeal was dismissed and therefore, according to learned advocate Mr. Zubin Bharda, the present applicant who happens to be the son of original defendant Ramprasad Fodiram Sharma, despite having brought it to the notice of the Court that the original defendant as well as plaintiff No.4 have expired and there legal heirs are required to be joined on record, the Court did Page 3 of 7 Downloaded on : Fri Mar 24 20:42:40 IST 2023 C/CA/902/2022 ORDER DATED: 23/03/2023 not pass any order on those two applications and proceed with the appeal and decided against the deceased Ramprasad Fodiram Sharma. 3.3 Therefore, learned advocate Mr. Zubin Bharda submitted that considering the fact that the original civil suit is of 2006, the order under challenged is required to be quashed and set aside and the matter is required to be remanded back by directing the Appellate Court to hear and decide the appeal within some time bound scheduled.
4. Learned advocate Mr. Rushabh R. Shah appearing for the respondents also submitted that as the original plaintiffs have grievance against the manner in which though appeal was filed by Ramprasad Fodiram Sharma, application for stay was signed by his son i.e. present applicant viz. Hemandra Ramprasad Sharma and therefore, he also preferred an application before the Appellate Court pointing out the aforesaid defect and seeking appropriate action. However, Page 4 of 7 Downloaded on : Fri Mar 24 20:42:40 IST 2023 C/CA/902/2022 ORDER DATED: 23/03/2023 that application also has remained undecided and impugned order is passed. However, neither learned advocate Mr. Zubin Bharda nor learned advocate Mr. Rushabh Shah could submit that the Appellate Court has not committed any error by keeping those applications pending while deciding the appeal.
5. Hence, ultimately both learned advocates Mr. Zubin Bharda and learned advocate Mr. Rushabh Shah submitted that this Court may quash and set aside the impugned order dated 17.3.2022 however, considering the fact that dispute is pending since 2006, the Appellate Court may be directed to hear and decide the Regular Civil Appeal No. 24 of 2009 within a period of six months or whatever the period that the Court may deem appropriate.
6. Both learned advocates appearing for the respective parties, considering the fact that they have requested for remanding back the matter have not opted for any reasoned order. Page 5 of 7 Downloaded on : Fri Mar 24 20:42:40 IST 2023 C/CA/902/2022 ORDER DATED: 23/03/2023
7. In view of above, the present civil application No. 902 of 2022 for leave to file a Civil Revision Application is allowed and impugned order dated 17.3.2022 passed in Regular Civil Appeal No.24 of 2009 is hereby quashed and set aside without opining anything on the merits of the matter.
8. In view of that impugned order dated 17.3.2022 passed in Regular Civil Appeal No.24 of 2009 is hereby quashed and set aside.
9. The Appellate Court i.e. Court of learned Second Additional District Judge, Navsari is hereby directed to hear and decide the Regular Civil Appeal No.24 of 2009 latest by 31.10.2023. All the rights and contentions of all the parties are kept open.
10. Learned Appellate Court is also directed to first decide the pending applications in respect of bringing legal heirs on record as well as the applications questioning the signature of Page 6 of 7 Downloaded on : Fri Mar 24 20:42:40 IST 2023 C/CA/902/2022 ORDER DATED: 23/03/2023 present applicant in the application for stay (perjury according to learned advocate Mr. Rushabh R Shah) and thereafter, to decide the appeal as per the direction issued in forgoing paragraphs.
11. With the aforesaid directions, the present application for leave to appeal as well as Civil Revision Application is disposed of.
12. It is clarified that this Court has not gone into merits of the matter.
13. In view of the fact that the impugned order dated 17.3.2022 is quashed by this Court, Regular Civil Appeal No.24 of 2009 is restored back to its original file.
14. Direct service is permitted.
(NIRZAR S. DESAI,J) Pallavi Page 7 of 7 Downloaded on : Fri Mar 24 20:42:40 IST 2023