Chaganlal Kanjibhai Agiya vs Virabhai Randhirbhai Parmar
2023 Latest Caselaw 1833 Guj

     C/FA/2385/2008                             ORDER DATED: 22/02/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                  R/FIRST APPEAL NO. 2385 of 2008
                               With
         CIVIL APPLICATION (FOR ABATMENT) NO. 1 of 2019
                 In R/FIRST APPEAL NO. 2385 of 2008
                               With
      CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2022
                 In R/FIRST APPEAL NO. 2385 of 2008
==========================================================
                       CHAGANLAL KANJIBHAI AGIYA
                                 Versus
                      VIRABHAI RANDHIRBHAI PARMAR
==========================================================
Appearance:
MR KETAN I ACHARYA, ADVOCATE WITH
MR.B.K.RAJ, ADVOCATE (2415) for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 1
MR RAHUL K DAVE(3978) for the Defendant(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 22/02/2023

                             ORAL ORDER

1. The present appeal is filed against the judgment and order

dated 28.12.2007 passed in Special Civil Suit No.79 of 2021 by

the Additional Senior Civil Judge, Veraval.

2. The subject matter of the suit is a land bearing Survey

No.57A of Village:Bhalpara, Tal:Veraval, Dist:Junagadh. The

appellant before the Court is the original defendant against

whom the respondent (original plaintiff) had filed suit in

connection with the subject land. The Civil Judge had allowed

the suit directing specific performance of the sale agreement

executed by the defendant in favour of the plaintiff and further

C/FA/2385/2008 ORDER DATED: 22/02/2023

directions to the defendant to deposit an amount of Rs.51,000/-.

3. It appears that the judgment and order was a subject

matter of challenge in the present appeal, wherein this Court

while admitting the appeal in order dated 21.08.2008 had also

passed a separate order in the Civil Application, wherein the

appellant was directed to deposit an amount, which was received

by the appellant from the respondent and such amount was to

be deposited within a period of 4(Four) weeks. Similarly, the

respondent was also directed to deposit an amount of

Rs.51,000/- along with interest at the rate of 12% per-annum

from the date of agreement to sale which comes to Rs.95,525/-

which is deposited. On the basis of this and other conditions, the

interim-relief was granted staying operation of the impugned

judgment and order. In the same order, it was also observed that

in case the applicant fails to deposit an amount as directed, the

interim-relief granted would stand automatically vacated.

4. At this stage, it is necessary to refer to the subsequent

development, as the appellant herein failed to deposit an amount

as directed by this Court, and therefore, the interim-relief thus,

granted stood automatically vacated.

C/FA/2385/2008 ORDER DATED: 22/02/2023

5. It appears that by the interim-direction, the appellant was

required to deposit an amount of Rs.9 lacs (approx) which the

appellant had failed. Though the interim-relief granted stood

automatically vacated by way of abandon caution, the

respondent herein moved a Civil Application No.2 of 2019 for

vacating the interim-relief.

6. The Civil Application No.2 of 2019 came to be disposed of

in favour of the respondent herein (original plaintiff) vide order

dated 18.06.2019, wherein this Court had specifically observed

that though the appellant was directed to deposit an amount

way back on 28.01.2008, the appellant has chosen not to

deposit such amount even after the period of almost 10 years.

The Court, therefore, ordered the vacating of the interim relief.

7. It is on record that immediately after the impugned

judgment and order, the respondent had filed Special Darkhast

No.18 of 2009 on 14.10.2009, which was kept pending in view of

filing of the present appeal and the conditional stay being

granted. However, when no proceedings took place before

Executive Court under the orders of the stay granted by this

Court, the respondent had moved a separate application for

vacating the interim-relief, as is mentioned in the preceding

C/FA/2385/2008 ORDER DATED: 22/02/2023

paragraphs. After the order dated 18.06.2019, wherein the

interim-relief was vacated once-again the execution application

was pursued by the respondent, however, in the meantime, it

was found that the sole respondent-Virabhai Randhirbhai

Parmar had expired on 01.05.2014, and therefore, on

16.06.2014, advocate on behalf of the respondent intimated the

Registry of this Court as well as learned advocate for the

appellant about the demise of the sole respondent.

7.1 The record of the Court would indicate that pursuant to

such intimation given to the Registry of this Court by the learned

advocate for the appellant in view of Order 22 Rule 10(a)

submission was made and placed before this Court. The record

also indicated that on 8 (Eight) occasions, the matter was

adjourned from one date to another, however, no application was

coming forth for bringing the legal heirs on record.

8. In view of Order 22 Rule 4(3), the appeal would abate

against the sole respondent, who has reportedly expired. The

appeal, therefore, had abated by operation of the provisions,

however, the respondent herein moved a separate application i.e.

Civil Application No.1 of 2019 seeking declaration of the

abatment so as to proceed ahead with the execution proceedings.

C/FA/2385/2008 ORDER DATED: 22/02/2023

It was categorically submitted that though the interim-relief

stood vacated and though the appeal against the sole

respondent, who has expired as abated, the Executing Court was

not proceeding ahead with the proceedings, and therefore, the

Civil Application was filed though not necessary under the law.

9. It appears that after filing of the application for abatment,

it is the appellant, who thereafter, filed a Civil Application for

bringing legal heirs of the sole respondent on record. The said

Civil Application No.1 of 2022 was filed with the prayer which

would read as under:-

"6(A) Be pleased to allow this application and permitted to bring legal heirs of the deceased on record as respondent nos.1/1 to 1/3 in the main First Appeal No.2385 of 2008.

(B) ..."

10. In the aforesaid application, an order came to be passed on

01.09.2022 in view of Rule 12(a) Chapter 2 of Part-I of Gujarat

High Court Rules and in view of the aforesaid order, it appears

that the appellant proposed a draft amendment dated

07.12.2022. The amendment is placed on record, wherein the

short amendment would read as under:-

C/FA/2385/2008 ORDER DATED: 22/02/2023

"1. The applicant has filed this application under Civil Procedure Code. The applicant files this application for adding the below mention prayer on the main Civil Application:-

(C) Condone the delay of _____ days in filing the aforesaid Civil Application for bring the legal heirs of First Appeal in the interest of justice and be pleased to set aside the abatment of First Appeal in the interest of justice."

2. Kindly grant this application and give necessary orders."

11. A perusal of such Draft Amendment would indicate that

the same is not on the affidavit of the appellant nor does it

contain any detail regarding the reason for which the delay has

occurred. There is no explanation offered for the delay that has

occurred in filing the application for bringing legal heirs on

record. On the other hand, the Court indicates and as is

observed in the proceding paragraphs in compliance of the Order

22 Rule 10(a), the respondent had brought to the notice of this

Registry as well as the appellant about the factum of death of the

sole respondent way back on 16.06.2014 and the submissions

made by the Registry, which would indicate that the appellant

was very much aware of the factum of death of sole respondent.

12. During the Course of argument, it is submitted that

C/FA/2385/2008 ORDER DATED: 22/02/2023

though no grounds are mentioned in the Civil Application for

bringing legal heirs on record as well as for draft amendment to

condone the delay, but it is orally submitted that on account of

negligence of the advocate, who was appearing at the relevant

time on behalf of the appellant that the issue of expiry of the sole

respondent had escaped the attention of the appellant, and

therefore, after the change in the advocate, the present

application is made. The Court has verified from the record that

the present advocate had filed formal appearance on 30.04.2019

by filing Vakalatnama at the same date still, the matter was at

submission stage for bringing legal heirs on record till

26.03.2015. Hence, this contention is also not accepted. It is

also submitted that only on account of the execution

proceedings, which were attended by the appellant that the

appellant came to know about the demise of the sole respondent

after January-2020.

13. Learned advocate for the appellant has also argued that

the appellant had filed a separate proceedings against the

execution proceedings by way of Special Civil Application

No.1669 of 2023 which came to be disposed of vide order dated

02.02.2023. It is submitted that the said petition came to be

C/FA/2385/2008 ORDER DATED: 22/02/2023

disposed of only with a view to move the Court in the pending

First Appeal by filing a separate application for bringing legal

heirs on record and as the permission was granted by this Court.

In the proceedings of S.C.A., the application for bringing the

legal heirs on record ought to have considered in light of the

order passed in S.C.A. in connection with the execution

proceedings. The perusal of the order dated 02.02.2023 does not

support the contentions raised herein above.

14. Considering the provisions of Order 22 and the nature of

application made before this Court for bringing heirs on record

devoid of any details including for condoning the delay, which is

required to be condoned while considering the application for

bringing legal heirs on record and for setting aside the

abatement, the Court does deem it fit to entertain the application

for bringing legal heirs on record.

15. Learned advocate for the applicant - original defendant has

made an attractive argument based on various pronouncements

of the Apex Court in connection with taking a technical view of

the matter. He has relied upon the decision of the Apex Court in

case of Sardar Amarjit Singh Kalra & Ors. Vs. Pramod

Gupta reported in 2003 (3) SCC 272, wherein it is observed

C/FA/2385/2008 ORDER DATED: 22/02/2023

that the procedures are meant to regulate effectively assist and

aid the object of doing substantial and real justice and not to

foreclose the adjudicatory process which otherwise merits

consideration for deciding the rights of the parties. It is famously

held that the procedure has always been viewed as the

handmaid of justice and not meant to hamper the cause of

justice or sanctify miscarriage of justice. On similar line, another

decision relied upon by the appellant-original defendant is a case

of N. Balaji Vs. Virendrasingh & Ors. reported in 2004 (8)

SCC 312.

16. At this stage, it would be appropriate to refer to the facts of

the appeal where by the impugned judgment and order dated

28.12.2007, the Additional Senior Civil Judge, Veraval had

passed an order declaring the plaintiff (respondent herein)

entitled for specific performance of sale agreement executed by

the defendant in favour of the plaintiff with regard to the subject

matter of suit which being certain non-agricultural plots. After

the decree in favour of the respondent herein since 2007, after

the period of 15 years also, the decree holder is unable to ripe

the benefits of decree in his favour, then it cannot be said that

the operation of law is too technical and can be disregarded for

C/FA/2385/2008 ORDER DATED: 22/02/2023

enabling the appellant herein to continue the challenge.

16.1 As is indicated herein above, that on several stages, the

appellant has failed to comply with the requirement of law, failed

to comply with the directions of this Court, and therefore,

application of Order 22 to declare the abatement does not

remain only technicality, but has to be understood as a provision

in favour of the respondent-original plaintiff to ripe the benefit of

the decree in his favour way back in the Year-2007.

17. On the other hand, the court may rely upon the decision of

the Apex Court in case of Gurnam Singh (D) THR LRS & Ors.

Vs. Gurbachan Kaur (D) BY LRS & ORS. reported in 2017

LawSuit (SC) 475, wherein in Paragraph No.18, it is held that

the law on the point is well settled. On the death of a party to the

appeal, if no application is made by the party concerned to the

appeal or by the legal representatives of the deceased on whom

the right to sue has devolved for substitution of their names in

place of the deceased party within 90 days from the date of death

of the party, such appeal abates automatically on expiry of 90

days from the date of death of the party. In other words, on 91st

day, there is no appeal pending before the Court. It is "dismissed

as abated".

C/FA/2385/2008 ORDER DATED: 22/02/2023

18. In so far as the Civil Application No.1 of 2019 filed by the

respondent is concerned, it is hereby declared that by operation

of the provisions of C.P.C. particularly order 22 Rule 4 & 3, the

appeal would abate against the sole respondent, who has

reportedly expired.

19. In view of the aforesaid, the Civil Application No.1 of 2019

is allowed. The present appeal is declared to have abated. As a

necessary consequence, the appeal also stands dismissed.

20. In view of the order passed in the present two applications,

no separate orders are required to be passed in connected Civil

Applications and the same would stand dismissed.

(A.Y. KOGJE, J) GIRISH ...