Dawoodbhai Mahmadbhai Ghanchi vs Harjibhai Mansingbhai Koli
2021 Latest Caselaw 2534 Guj

         C/SA/178/2005                                    IA ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2020
               In R/SECOND APPEAL NO. 178 of 2005
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DAWOODBHAI MAHMADBHAI GHANCHI Versus HARJIBHAI MANSINGBHAI KOLI ========================================================== Appearance:

MANAN K PANERI for the PETITIONER(s) No. MR BHARAT R PANDYA for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 17/02/2021 IA ORDER Heard learned advocate Mr.Manan Paneri for the applicant.

Rule. None appears for the respondent.

This application is filed for condoning the delay of 3895 days occurred in filing the Civil Application for bringing legal heirs of the deceased Harjibhai Mansingbhai Koli respondent herein on record.

Learned advocate for the applicant has stated that the First Appeal is pending for hearing and the same was listed on 04.03.2020 for hearing. He has stated that the applicant has approached the learned advocate for the applicant in second week of August, 2020 to seek legal advice regarding violation of inter-relief granted by the Court and at that time during the course of discussion, the applicant informed the advocate about the demise of the original respondent-Harjibhai Mansingbhai Koli many years back somewhere in 2009. He has submitted that soon after it was brought to the notice of the learned advocate for the applicant, procedure for bringing legal heirs of the deceased respondent no.2 was initiated. He has further stated that great difficulty the applicant could

C/SA/178/2005 IA ORDER

procure the death certificate and pedhinama of the deceased Harjibhai Mansingbhai Koli through Mamlatdar Office, Dhrrangadhara on 09.09.2020. He has submitted that the deceased Harjibhai Mansingbhai Koli died on 18.04.2009 and the deceased is survived by the opponent no.1/1 to 1/7, who seems to be son and daughter of the decease. He has also stated that since the applicant was not aware about the legal procedure, the application for bringing legal heirs could not be instituted within time.

Further, learned advocate for the applicant has relied upon the judgment of the Apex Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village V/s. Bhargavi Amma (Dead) By LRS & Ors., (2008) 8 SCC 321, wherein para 19 reads as under:-

"19. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) :

(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;

(ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant.

(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim."

It is also stated by the learned advocate for the applicant that delay is not deliberate and there is no negligence on the part of the applicant.

The explanation rendered by the learned advocate for the applicant requires consideration. It appears that the delay occurred in filing the application for bringing legal heirs of the deceased on record is not intentional or with any mala fide intention.

Considering the above referred judgment relied upon by the

C/SA/178/2005 IA ORDER

learned advocate for the applicant and the averments made in this application, present application deserves to be allowed.

Accordingly, the delay of 3895 days occurred in bringing legal heirs of the deceased on record is required to be condoned and the same is hereby condoned. The Civil Application is allowed to the aforesaid extent. Rule is made absolute.

(VAIBHAVI D. NANAVATI,J) ABHISHEK