Gujarat Industrial Development ... vs Lalitaben Dayalji Desai
2021 Latest Caselaw 16822 Guj

     C/FA/17521/2020                            IA ORDER DATED: 26/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


        CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
                 In F/FIRST APPEAL NO. 17521 of 2020
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GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION THROUGH REGIONAL MANAGER Versus LALITABEN DAYALJI DESAI ========================================================== Appearance:

MR RD DAVE for the PETITIONER(s) No. MR SHIVAM DIXIT, AGP for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 26/10/2021

IA ORDER

1. The present Civil Application is preferred by the applicant for bringing legal heirs on record of deceased Lalitaben Dayalji Desai.

2. Heard learned advocate Mr. R.D. Dave appearing for the applicant.

3. The Registry has filed a note stating that there is a delay of 38 days in preferring Civil Application for bringing legal heirs on record. When the aforesaid aspect was pointed out to the learned advocate Mr. R.D. Dave, Mr. Dave has submitted that in view of the judgment of the Hon'ble Supreme Court in case of State of Kerala vs. Sridevi reported in 2000(9) SCC 168, such application for condonation of delay is not required to be filed. He relied upon paragraphs 5 and 6 of the aforesaid judgment, which read thus:

C/FA/17521/2020 IA ORDER DATED: 26/10/2021

"5. There was no need to invoke any of the Rules in Order XXII as there was no question of abatement since death of the sole respondent had taken place only after the judgment was delivered by the Sub-Court. The error which had crept in is that the appeal was filed against a person who was not then alive. In such a case Order 1 Rule 10 has to be invoked. There is no specified period of limitation for making an application in the aforesaid Rule and hence, if at all any application in necessary the same could be filed within three years under Article 137 of the Limitation Act. In the present case the application was filed much ahead of that time. It was filed on 22.5.1993.

6. We are satisfied that wrong person was joined in the appeal as the Government knew about the death of the respondent only when the notice was returned with the endorsement that the said person is no more. Of course learned Counsel for the respondent contented that Government had opportunity to come to know of that aspect earlier. It may be that one of the officers of the Government would have come to know of that fact. But we are not disposed to credit the Government with the knowledge of his death solely on the ground that one individual Government servant had such knowledge. When public interest is involved a bilateral attitude in the matter can be adopted."

3.1. In view of aforesaid, he submitted that he is not required to file any application for condonation of delay as the claimant has expired after the judgment was delivered by the Lower Court but before filing of the appeal as present application for bringing legal heirs is filed within a period of three years from the date of original claimant.

C/FA/17521/2020 IA ORDER DATED: 26/10/2021

4. In view of aforesaid submission as well as considering the judgment of the Hon'ble Supreme Court in the case of State of Kerala vs. Sridevi (supra), the submission of learned advocate Mr. R.D. Dave merit acceptance. Hence the question of filing any application for condonation of delay caused in filing an application for bringing legal heirs of deceased on record would not arise and therefore, the present application for bringing legal heirs on record is taken up.

5. Considering the submissions made by the learned advocate Mr. R.D. Dave for the applicant and considering the averments made in the application as well as considering the facts and circumstances of the case, the present application for bringing legal heirs on record of deceased Lalitaben Dayalji Desai deserves to be allowed and the same is accordingly allowed.

6. The present applicant is directed to carry out amendment in the cause title of main First Appeal as well as connected Civil Applications. Once the amendment is carried out, Registry is directed to list the Civil Application for condonation of delay caused in filing the main First Appeal for admission hearing.

(NIRZAR S. DESAI,J) KUMAR ALOK