Aashmohamad Haji Sukharati ... vs State Of Gujarat
2021 Latest Caselaw 16980 Guj

     C/SCA/443/2015                            ORDER DATED: 28/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 443 of 2015

==========================================================
       AASHMOHAMAD HAJI SUKHARATI DECEASED & 4 other(s)
                           Versus
                STATE OF GUJARAT & 4 other(s)
==========================================================
Appearance:
DELETED(20) for the Petitioner(s) No. 2,3.1,5
MR AR THACKER(888) for the Petitioner(s) No.
1,1.1,1.1.1,1.1.2,2,3,3.1,3.2,3.3,3.4,4,5
MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 1,2,3
NOTICE UNSERVED(8) for the Respondent(s) No. 4,5
==========================================================
 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                           Date : 28/10/2021

                            ORAL ORDER

1. Learned advocate for the petitioners requested to delete

the respondent nos.4 and 5 as they are expired during the

pendency of this petition. Permission to delete the respondent

nos.4 and 5 as prayed for is hereby granted.

2. By preferring this petition, petitioners have challenged

the impugned judgment and order dated 14.08.2014 passed

by the learned 5th Additional District Judge, Junagadh

dismissing Review Application No.1 of 2014 and further

requested to allow this petition.

3. Short facts leading to the filing of the present petition

may be summarized as under:

       C/SCA/443/2015                                   ORDER DATED: 28/10/2021



3.1    The plaintiffs - original petitioners filed Regular Civil Suit

No.1109 of 1986. Along with the suit, as per the submissions,

one application for waiver of notice under Section 80(2) of the

C.P.C. was made and it was granted by the learned Trial

Court. In the said suit, proceedings initiated by the

Maintenance Surveyor, City Survey Office, Junagadh dated

26.11.1986 was challenged. The learned Trial Court dismissed

the suit vide judgment and decree dated 27.04.2001. Pending

the suit, status-quo was directed to be maintained. The

plaintiffs, being aggrieved with the aforesaid judgment and

decree dated 27.04.2001 dismissing Regular Civil Suit

No.1109 of 1986, preferred Regular Civil Appeal before the

District Court, Junagadh, which was registered as Regular

Civil Appeal No.31 of 2001. Pending the appeal, petitioner no.1

- Nisharmahmad Aashmahmad died on 21.04.2003, and

therefore, application under Order 22 Rule 10 of the Civil

Procedure Code was made by the assignee of the petitioner

no.1. In the said application, relevant provision of law was not

mentioned. The said application was filed by the assignee of

the petitioner no.1 on 18.11.2009, which was registered at

Exh.16. The learned District Court concerned was pleased to

issue notice to the other side on payment of process fees and

C/SCA/443/2015 ORDER DATED: 28/10/2021

fixed for hearing, and thereafter, time and again, appeal was

adjourned for hearing of the application Exh.16 filed on

18.11.2009. Written submission, in support of the application

Exh.16, was submitted by the assignee of the petitioner no.1

on 16.07.2011 before the learned District Court concerned

and the matter was kept for order below Exh.16 on

16.08.2011. No order was passed below application Exh.16

and the judgment was delivered by the learned District Court

concerned dismissing Regular Civil Appeal No.31 of 2001

without deciding the application Exh.16 preferred by the

assignee of the petitioner no.1. The petitioners filed Review

Application before the learned Principal District Judge,

Junagadh pointing out that the said application Exh.16 was

not decided during the pendency of the appeal preferred by

the plaintiffs. The learned 5th Additional District Judge,

Junagadh, vide its judgment and order dated 14.08.2014,

dismissed Review Application No.1 of 2014. Hence, this

petition.

4. Heard learned advocate for the petitioners and learned

AGP for the respondent-State.

5. It is submitted by learned advocate for the petitioners

C/SCA/443/2015 ORDER DATED: 28/10/2021

that in the appeal preferred by the plaintiffs, vide Exh.16, on

18.11.2009, assignee of the plaintiff no.1 filed the application

with a request to bring on record the assignees of the plaintiff

no.1, who was expired on 21.04.2003. The main appeal was

decided by the learned Lower Appellate Court without deciding

the application Exh.16 and the same was dismissed which is

not permissible under the law. That legal heirs of the deceased

were required to be brought on record in the appeal, however,

no hearing was fixed in the main appeal. It is further

submitted that without considering the merits of the review,

learned District Judge concerned has dismissed the said

Review Application vide judgment and order dated

14.08.2014, and therefore, the impugned order is required to

be quashed and set side. Hence, it is requested by learned

advocate for the petitioners to allow this petition and quash

and set aide the impugned order in Review Application No.1 of

2014 dated 14.08.2014.

6. From the other side, learned AGP for the respondent-

State vehemently objected the submissions made by learned

advocate for the petitioners and submitted that the proposed

heirs of the petitioner no.1 are not legal heirs of the deceased,

but they are brothers of the deceased. It is further submitted

C/SCA/443/2015 ORDER DATED: 28/10/2021

that however, the plaintiff no.1 - Nisharmahmad

Aashmahmad was expired in the year 2003, application

Exh.16 was preferred by the proposed legal heirs, as alleged in

the appeal i.e. Regular Civil Appeal No.31 of 2001 on

04.11.2009, which was not at all maintainable. It is further

submitted that the learned Appellate Court has committed no

error in dismissing the Review Application No.1 of 2014

preferred by the present petitioners. It is further submitted

that under Order 47 Rule 1 of the CPC, prayer made by the

petitioners can never be granted and which is rightly rejected

by the learned District Judge, Junagadh. It is further

submitted that in the petition, there is no substance and no

grounds are made out to quash and set aside the impugned

order and therefore, it is requested by learned AGP for the

respondent - State to dismiss this petition.

7. Having heard learned advocate for the petitioners as well

as learned AGP for the respondent - State, it is undisputed

fact that Regular Civil Suit No.1109 of 1986 was preferred by

the original plaintiffs against the defendants for declaration

and injunction challenging the notice dated 26.11.1986 issued

under Section 202 of the Bombay Land Revenue Code, suit

was dismissed by the learned Trial Court vide judgment and

C/SCA/443/2015 ORDER DATED: 28/10/2021

decree dated 27.04.2001. The original plaintiffs challenged the

said judgment and decree by filing Regular Civil Appeal No.31

of 2001 before the learned District Court, Junagadh. From the

rojkam produced before this Court, it appears that an

application Exh.16 was preferred under Order 22 Rule 10 of

the CPC by the assignee of the petitioner no.1 stating that

petitioner no.1 - Nisharmahmad Aashmahmad was expired

on 21.04.2003, and therefore, the proposed petitioners may be

permitted to bring on record in place of the deceased. The

application Exh.16 was submitted on 18.11.2009. Initially,

learned District Judge concerned was pleased to issue notice

to other side on payment of the process fees and fix the

application for hearing. Written submission was also filed in

support of the application Exh.16 before the learned First

Appellate Court. Time and again, the appeal preferred by the

plaintiffs i.e. Regular Civil Suit No.31 of 2001 was adjourned,

but an application Exh.16 was not decided on merits. The

learned District Court dismissed the Regular Civil Appeal

No.31 of 2001 by judgment and order dated 16.08.2011

without deciding the application Exh.16 preferred by the

assignee of the plaintiff no.1. The petitioners, being

dissatisfied with the judgment and order passed by the

C/SCA/443/2015 ORDER DATED: 28/10/2021

learned District Court, Junagadh dismissing the Regular Civil

Appeal No.31 of 2001 dated 16.08.2011, preferred Review

Application No.1 of 2014, under Order 47 of the CPC. It is not

in dispute raised by the respondents in respect of the

application Exh.16 not decided by the Appellate Court. In the

Review Application, it was observed by the Review Court that

the proposed petitioners are not legal heirs of the deceased as

they are the brothers and therefore, they cannot be permitted

to be joined as legal heirs as they were not necessary party. To

decide the controversy between the parties, there would not be

prejudice likely to be caused to the respondents if the

proposed petitioners are permitted to be joined as a party in

the suit in place of the deceased - Nisharmahmad

Aashmahmad. Right, title and interest in the suit property

would be decided independently by the learned Trial Court

concerned. Considering the facts of the present case, the

proposed petitioners were necessary parties to decide the real

controversy between the parties, they cannot be denied to be

joined as the plaintiffs in the suit preferred by plaintiff i.e.

Regular Civil Suit No.1109 of 1986. Hence, impugned order

dated 14.08.2014 is hereby quashed and set aside and

proposed petitioners viz. Isthiyaq Mahmad Aashmahamad and

C/SCA/443/2015 ORDER DATED: 28/10/2021

Shaikh Shakilmahamad Nisharmahamad are permitted to be

joined as a party/plaintiff in place of the deceased -

Nisharmahmad Aashmahmad. Right, title and interest would

be decided by the learned Trial Court independently.

Impugned order dated 14.08.2014 passed in Review

Application No.01 of 2014 is hereby quashed and set aside.

8. In view of the above observations, present petition is

disposed of.

(B.N. KARIA, J) rakesh/