Gujarat High Court
Mandar (Thaltej) Complex Private ... vs Gohel Punjabhai Sodabhai on 1 May, 2025
NEUTRAL CITATION
C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12645 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
==========================================================
MANDAR (THALTEJ) COMPLEX PRIVATE LIMITED
Versus
GOHEL PUNJABHAI SODABHAI & ORS.
==========================================================
Appearance:
MR AS VAKIL(962) for the Petitioner(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1
MS NIKITA C GANDHI(11570) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/05/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Chinmay M. Gandhi waives service of notice of rule on behalf of respondent No.1. Though served, none present for respondent Nos. 2 and 3. However, their presence is not required for adjudication of present petition.
2. This petition is filed under Article 227 of the Constitution of India challenging the order dated 16.02.2023 passed by the Page 1 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025 NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined appellate court in Miscellaneous Civil Appeal No. 4 of 2023, whereby the appellate court allowed applications filed by Respondent No. 1, including:
a) Application under Exh. 30 for condonation of delay of more than 12 years and 10 months,
b) Application under Exh. 35 for bringing legal heirs on record, and
c) Application under Exh. 44 for setting aside the abatement of Regular Civil Suit No. 22 of 2005.
3. Brief facts leading to the present petition are as follows :
3.1 The petitioner is the original Defendant No. 1 in Regular Civil Suit No. 22 of 2005 filed by one Sajanben Dhanjibhai Patel through her Power of Attorney holder, Surabhi Bhulabhai.
3.2 The original plaintiff - Sajanben passed away on 25.05.2008. Since her legal heirs were not brought on record, the suit got abated.
Page 2 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025
NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined 3.3 Respondent No. 1, claiming to be the husband of the deceased plaintiff, filed applications i.e. to bring himself on record as her legal heir, to set aside the abatement, and to condone the delay in filing the such applications. 3.4 These applications were rejected by the Trial Court on 11.01.2023. However, in appeal, the appellate court allowed the same on 16.02.2023 without assigning sufficient reasons regarding the delay or satisfaction on the issue of sufficient cause.
4. Submissions of petitioner :
4.1 Learned counsel Mr. A. S Vakil, appearing for the petitioner would submit that, the appellate court has committed a serious error of law by allowing the appeal without recording a finding that sufficient cause was shown for the condonation of delay or justification for setting aside the abatement, thereby committed jurisdictional error while allowing the appeal.
Page 3 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025
NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined 4.2 Learned counsel Mr. Vakil would further submit that, the appellate Court was confused about the fact that which party is speaking the truth. The observations made by the appellate Court are suggesting the fact that without verifying such aspects of the matter, appellate Court has erroneously allowed the appeal.
4.3 Learned counsel Mr. Vakil would further submit that, there was a gross delay in filing impugned applications and in a case where there is no satisfactory explanation coming forth from the side of respondent No.1 in respective applications, appellate Court could not have interfered with order passed by the trial Court.
4.4 So, under the instructions of his client, learned advocate Mr. Vakil would request this Court to remand back the matter to the appellate Court to re-decide and re-adjudicate the appeal afresh. Thus, learned counsel Mr. Vakil would request this Court to allow the present writ application. Page 4 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025
NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined
5. Submission of respondent No.1.
5.1 Learned counsel Mr. Chinmay M. Gandhi, appearing for Respondent No. 1, while supporting the order passed by the appellate court, fairly submitted that certain observations made in the order impugned in petition therein may have led to some confusion. Upon instructions from his client, he has no objection to the matter being remanded for fresh adjudication. 5.2 Learned counsel Mr. Gandhi would request this Court that in view of the aforesaid facts, if this Court remands the matter back to the appellate Court, rights and contentions of the respondent No.1 may be kept open to be decided by the appellate Court in appeal.
5.3 Making above submission, learned counsel Mr. Gandhi would request this Court to pass appropriate order. No other and further submissions are made.
6. Analysis :
6.1 After hearing learned counsel for the respective parties and Page 5 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025 NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined after going through the impugned order, it appears that appellate Court has without recording findings and / or satisfaction to the effect that sufficient cause is made out by respondent No.1 - original appellant in aforesaid applications so filed by him for seeking condonation of delay / setting aside abatement of suit, appeal came to be allowed. Such recourse would not be permissible in law in as much as Appellate Court was required to arrive at specific finding that sufficient cause made out by respondent No.1-Appellant while filing aforesaid applications to bring legal heirs of deceased plaintiff on record and so also setting aside abatement of the suit. In absence of any such finding, Appellate Court could not have allowed the appeal.
6.2 The relevant observation made by the appellate Court while allowing the appeal requires to be taken note by this Court which reads as under:
"7. That being the position, even though the arguments of both the Ld. Advocates appears to be right in their respective contexts, yet, this Court cannot loss sight of the fact that the courts are meant for doing substantial justice between the parties and the short question involved herein is qua setting aside the abetment and Regular Civil Suit Page 6 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025 NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined No. 22 of 2005 by allowing the applications for condoning delay of 12 years and 10 months in bringing legal heirs of late Sajjanben on record as well as allowing him to continue with the Regular Civil Suit No. 22 of 2005. So far this short question is concerned, on the basis of documents produced and averments made in applications at Exhibit:30, Exhibit:35 and Exhibit:44, it is not possible to adjudicate as to which of the parties is speaking truth , hence, this Court is of the considered opinion that the appellant-originally applicant shall be given an opportunity to agitate his claim on merit.
8. Even after this Court is of the observation that the appellant-originally applicant is required to be given an opportunity to contest Regular Civil Suit No. 22 of 2005 on merits, yet, this Court cannot loss sight of the inordinate and unexplained delay which cannot he believed as rightly observer by Ld. Trial Court. This Court is of the considered opinion that interest of justice will be best served if a cost is imposed upon the appellant-
originally applicant. In following order ensues: these circumstances."
7. Conclusion :
7.1 In light of the above aspect of the matter, and now, the learned counsel appearing for both the parties are consensus ad idem to remand the matter back to Appellate Court for rehearing of the appeal afresh, this Court finds it appropriate to quash and set aside the impugned order dated 16.02.2023 Page 7 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025 NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined and remand Miscellaneous Civil Appeal No. 4 of 2023 to the appellate court for its fresh decision. 7.2 As this court has inclined to accept the request made by the respective parties of remanding the matter back, appellate court is hereby requested to decide such appeal after giving opportunity of hearing to all concerned and on its own merits without being influenced by any of its earlier order and order passed by this court.
7.3 As the proceedings are pending since long, if the parties will extend their cooperation for hearing, appellate court is hereby requested to adjudicate appeal at the earliest, preferably on or before 30th August 2025. 7.4 It is made clear that this court has neither gone into nor examined the merits of the matter which may be decided by the appellate court afresh.
7.5 In view of the aforesaid observations and reasons, the impugned order dated 16.02.2023 passed in Miscellaneous Civil Appeal No. 4 of 2023 is hereby quashed and set aside. The Page 8 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025 NEUTRAL CITATION C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025 undefined Miscellaneous Civil Appeal No. 4 of 2023 is restored back on its original file. The present petition is allowed to the aforesaid extent. Rule is made absolute accordingly. There shall be no order as to cost.
(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 9 of 9 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 11:43:38 IST 2025