Ushaben W/O Parshottam Gandabhai ... vs Parshottam Gandabhai Patel
2021 Latest Caselaw 14806 Guj

     C/SCA/7043/2021                            ORDER DATED: 22/09/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 7043 of 2021
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        USHABEN W/O PARSHOTTAM GANDABHAI (DECEASED)
                           Versus
                PARSHOTTAM GANDABHAI PATEL
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Appearance:
1) Advocate Not Given (MA) for the Petitioner(s) No. 1.1
DECEASED LITIGANT(100) for the Petitioner(s) No. 1
MR DHAVAL D VYAS(3225) for the Petitioner(s) No. 1.1
. for the Respondent(s) No. 2
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1,3,4
MR PANKAJKUMAR SONI(1940) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 3,4
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                           Date : 22/09/2021

                            ORAL ORDER

1. By preferring this petition, the petitioner has challenged

the order dated 09.03.2021 passed by the Principal Senior

Civil Judge, Surat below Application Exh.94 filed in Probate

Application No.92 of 2004, refusing to appoint the petitioner

as the guardian of her husband-original petitioner/applicant.

2. Heard learned advocates for the respective parties. The

respondent nos.3 and 4 have expired.

3. Learned advocate for the petitioner submits that the

impugned order has been passed without appreciating the

purport of Order 32 of the Code of Civil Procedure, 1908

C/SCA/7043/2021 ORDER DATED: 22/09/2021

(hereinafter referred to as "the CPC" for short) inasmuch as

the same should be liberally considered without resorting to a

strict technical approach. It is further submitted that the

sufficient material in form of medical reports was produced on

record for satisfying the Court that the original

applicant/petitioner was unfit and incapacitated to pursue

and participate in the proceedings. It is further submitted that

the purport of application filed at Exh.84 (Order 1 Rule 10)

and Exh.94 (Order 32 Rule 15) was materially distinct from

another, inasmuch as the order passed below Application

Exh.84 would not bind the discretion of the Court to consider

the present application in view of the clarification made by the

Court. Hence, it is requested by him to decide the application

i.e. Probate Application No.92 of 2004 by the learned Trial

Court in accordance with law.

4. Learned advocate for the respondents submits that the

petitioner and his abettor/s have committed serious offence

before the Court of learned Principal Senior Civil Judge, Surat

which is the subject matter of this petition, and therefore,

rights of the respondent no.2 are reserved to initiate legal

proceedings against the petitioner before the Court of learned

Principal Senior Civil Judge, Surat. It is further submitted

C/SCA/7043/2021 ORDER DATED: 22/09/2021

that the petitioner is trying to avoid the legal proceedings

before the Court of Principal Senior Civil Judge, Surat. It is

further submitted that the Principal Senior Civil Judge, Surat

has passed absolutely legal and proper order on 09.03.2021,

but the petitioner has ex-parte misled this Court. It is further

submitted that the petitioner came to know that the

respondent no.3 has expired on 03.12.2011 and the

respondent no.4 has expired on 11.08.2006 though the

petitioner continued the proceedings against expired persons

with malafide intention. It is further submitted that the

application i.e. Probate Application No.92 of 2004 is pending

for pronouncement of judgment/order. Hence, it is requested

by learned advocate for the respondents to decide the

application i.e. Probate Application No.92 of 2004 by the

learned Trial Court in accordance with law.

5. Having heard learned advocates for the respective parties

and the facts as well as Application Exh.94 preferred by

Ushaben wife of Parshotam Gandabhai, who is the original

petitioner in Probate Application No.92 of 2004 filed under

Order 32 Rule 3 of the CPC, it appears that Ushaben wife of

Parshotam Gandabhai has already expired on 06.05.2021

C/SCA/7043/2021 ORDER DATED: 22/09/2021

and the legal heir of the deceased - Ushaben wife of

Parshotam Gandabhai is already brought on record i.e.

Ashokbhai son of Parshottam Gandabhai. It also appears that

the Trial Court, after hearing the parties, rejected the

Application Exh.94 by an order dated 09.03.2021. It was

observed that the Medical Certificate at Exh.54 was produced

on record in chief-examination dated 04.01.2018 at Exh.55/1.

At fag end of the trial, the Application Exh.94 was filed and

previous application at Exh.84 filed under Order 1 Rule 10 of

the CPC was rejected and the Trial Court opined not to

consider the prayer made by the petitioner - Ushaben wife of

Parshotam Gandabhai.

6. Having considered the previous proceedings and the fact

that deposition of the original petitioner - Parshotam

Gandabhai Exh.49 was discarded and deposition of Ushaben

wife of Parshotam Gandabhai was recorded at Exh.54, the

petitioner was expired on 06.05.2021 and legal heir of the

petitioner is brought on record as well as the application is

pending since 2004 and as the age of the respondent no.2 is

about 82 years, with the consent of the respective parties, the

present petitioner viz. Ashokbhai son of Parshotam

C/SCA/7043/2021 ORDER DATED: 22/09/2021

Gandabhai may be permitted to appoint himself as guardian

of Parshottambhai Gandabhai Patel and to permit amend the

cause-title of the probate application.

7. Considering the pendency of the application i.e. Probate

Application No.92 of 2004, the Trial Court shall decide the

application in accordance with law, within a period of three

months from the date of receipt of this order after giving an

opportunity of hearing to the parties. No fresh evidence would

be permitted.

8. With the above observations, present petition is

disposed of.

(B.N. KARIA, J) rakesh/