Gujarat High Court
Ghanshyambhai Harmanbhai Patel vs Purnaben Ashokbhai Joshi on 9 May, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/663/2018 ORDER DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 663 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 663 of 2018
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/FIRST APPEAL NO. 663 of 2018
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2025
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/FIRST APPEAL NO. 663 of 2018
With
R/FIRST APPEAL NO. 1087 of 2018
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2018
In R/FIRST APPEAL NO. 1087 of 2018
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GHANSHYAMBHAI HARMANBHAI PATEL & ANR.
Versus
PURNABEN ASHOKBHAI JOSHI
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Appearance:
MR DHRUV K DAVE(6928) for the Appellant(s) No. 1,2
MR VILAV K BHATIA(5338) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 09/05/2025
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN) Order in Civil Application (for Condonation of Delay) no.2 of 2025 in First Appeal no.663 of 2018:
By this application, the applicants have prayed for condoning the delay of 791 days caused in preferring the application for bringing the heirs of the applicant no.2 on record of the captioned proceedings.
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2. Mr Dhruv K. Dave, learned advocate for the applicants states that the delay is bona fide. It is submitted that steps were taken and in the process, there occurred a delay. The proposed applicant being the legal heir, was unable to take necessary steps owing to certain commitment as indicated in paragraph 5 of the captioned application. Thereafter, steps were taken promptly; however, the delay occurred. Request is made to condone the delay.
3. Mr Yash Mehta, learned advocate for Mr Vilav K. Bhatia, learned advocate for the sole respondent, has no objection if the delay is condoned and the proposed heir of the appellant no.2, is brought on the record.
4. Considering the explanation offered in the application, the delay deserves to be condoned and is hereby condoned. Civil Application, succeeds and is accordingly, allowed. No order as to costs.
Civil Application (for bringing heirs) no.1 of 2025 in First Appeal no.663 of 2018:
By this application, the applicant being the sole legal heir of the appellant no.2, prays for impleadment as appellant no.2.1 in the captioned First Appeal.
2. Mr Dhruv K. Dave, learned advocate for the applicants has invited the attention of this Court to the death certificate of the appellant no.2, who passed away on 07.12.2022. Together with the application, the applicant, has also tendered the affidavit indicating the family tree.
3. It is submitted that the mother of the proposed appellant, got Page 2 of 5 Uploaded by BINOY B PILLAI(HC00183) on Fri May 09 2025 Downloaded on : Sat May 10 21:24:55 IST 2025 NEUTRAL CITATION C/FA/663/2018 ORDER DATED: 09/05/2025 undefined divorced in the year 2002 and subsequent thereto, she has remarried. In support thereof, Mr Dhruv K. Dave, learned advocate, has filed the affidavit, seeking withdrawal as well as placing on record the documents, i.e. memorandum of marriage, decree dated 30.10.2002 passed by the learned Principal Senior Civil Judge, Vadodara as well as the certificate of marriage dated 07.12.2012. It is urged that the proposed applicant, as indicated in paragraph 6 of the application, may be impleaded as appellant no.2.1.
4. Mr Yash Mehta, learned advocate for Mr Vilav K. Bhatia, learned advocate for the respondent, has no objection, if the proposed applicant is impleaded as appellant no.2.1 in the captioned proceedings.
6. Having regard to the averments made, so also the documents and the affidavits, captioned Civil Application, deserves to be allowed and is accordingly, allowed. No order as to costs. The heir, as indicated in paragraph 6 of the captioned application, is directed to be brought on record.
7. Necessary amendment, to be carried out forthwith.
Order in First Appeal nos.663 of 2018 and 1087 of 2018:
Mr Dhruv K. Dave, learned advocate for the appellants in First Appeal no.663 of 2018 states that the appellants, were the original defendants in Special Civil Suit no.288 of 2014 filed by the original plaintiff, seeking specific performance of the agreement to sell. The suit came to be dismissed; however, the defendants, i.e. the appellants, were directed to return the earnest money of Rs.25 lac each, i.e. total Rs.50 lac with simple interest at the rate of 6% from the date of filing of suit, i.e. 16.05.2014.
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2. Mr Dhruv K. Dave, learned advocate and Mr Yash Mehta, learned advocate for Mr Vilav K. Bhatia, learned advocate, jointly submitted that the plaintiff and the defendants, since both were aggrieved, have filed appeals, namely, First Appeal no.663 of 2018 was filed by the defendants being aggrieved by the direction of the refund; whereas original plaintiff has filed First Appeal no.1087 of 2018 being aggrieved by the refusal of specific performance.
3. It is submitted that now, the parties, have settled the issue and in view thereof, the original plaintiff and the defendants, seek permission to withdraw the respective appeals. In support whereof, Mr Dhruv K. Dave, learned advocate has tendered the affidavit of the power of attorney of the appellant no.1 as well as the affidavit for withdrawal by the newly added appellant no.2.1. Similarly, the original plaintiff has also tendered affidavit. As per the affidavits, the parties, do not propose to pursue the appeal and seek permission to withdraw the same. The affidavits, are directed to be taken on record.
4. Relevant extracts of the affidavit of the original plaintiff read thus:-
"2. That during the pendency of the present appeal, the dispute between myself and the opponent has been resolved amicably through mutual discussions and understanding. The settlement has been arrived at voluntarily, without any coercion, pressure, or undue influence from any side. All the issues raised in the present appeal now stand resolved to the satisfaction of both parties.
3. That in light of the amicable settlement, I do not wish to pursue or continue with the proceedings in the present appeal. I have no further grievance subsisting in respect of the subject matter of the appeal that would warrant adjudication by this Hon'ble Court."
Relevant extracts of the affidavit of the power of attorney of the appellant no.1 read thus:
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I submit that the parties have amicably settled the dispute and therefore the Judgment under challenged may be confirmed.
3. That this affidavit is executed of my own free will, without any force, pressure, or coercion from any person or party. That I affirm that this withdrawal is final and irrevocable, and I shall not assert any claim in the future pertaining to the subject matter."
Relevant extracts of the affidavit of the appellant no.1 read thus:
"4. That upon decree passed by the Learned Trial Court, the same was challenged before this Hon'ble Court by the captioned appeal. I submit that the parties have amicably settled the dispute and therefore the judgment under challenged may be confirmed.
5. That this affidavit is executed of my own free will, without any force, pressure, or coercion from any person or party. That I affirm that this withdrawal is final and irrevocable, and I shall not assert any claim in the future pertaining to the subject matter."
4. In view thereof, the respective appeals, namely, First Appeal no.663 of 2018, so also First Appeal no.1087 of 2018, are permitted to be withdrawn. No order as to costs.
5. Connected Civil Applications, also stand disposed of.
6. Record & proceedings, if any received, be sent back to the Court concerned.
(SANGEETA K. VISHEN,J) (MOOL CHAND TYAGI, J) BINOY B PILLAI Page 5 of 5 Uploaded by BINOY B PILLAI(HC00183) on Fri May 09 2025 Downloaded on : Sat May 10 21:24:55 IST 2025