Legal Heirs Of Decd.Tulsiram ... vs Lallubhai Motiram Vishwakarma
2023 Latest Caselaw 4870 Guj

       C/SCA/12088/2012                             ORDER DATED: 23/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12088 of 2012

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      LEGAL HEIRS OF DECD.TULSIRAM RAMFAL GUPTA - DULARIBEN
                         WD/O. & 6 other(s)
                              Versus
            LALLUBHAI MOTIRAM VISHWAKARMA & 1 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 23/06/2023
                       ORAL ORDER

1. By way of this petition filed, under Article 227 of the

Constitution of India, the petitioners seek to challenge the

order dated 05.07.2012 passed below Exhs.31 and 33, in

RCS No.115 of 1991, by which learned 2nd Additional

District Judge, Surat was pleased to reject the application

to condone the delay caused in bringing the legal heirs of

original plaintiff as a party appellant.

2. This Court has heard learned counsels Mr.Jamsed Kavina,

Mr.S.P.Majmudar and Mr.Zubin Bharda for the respective

parties.

3. Facts and circumstances giving rise to file present petition

are that deceased Tulshiram Gupta had filed Civil Suit

being RCS No.1192 of 1986 and RCS No.375 of 1989,

C/SCA/12088/2012 ORDER DATED: 23/06/2023

regarding the land property situated at Surat. Vide

judgment and decree dated 30.10.1990, both the suits

came to be dismissed by the Civil Judge, Surat. The

deceased Tulshiram filed an appeal, against the common

judgment and decree which came to be registered as

Regular Civil Appeal No.115 of 1991. During the pendency

of the appeal, on 15.01.2007, original plaintiff Tulshiram

died. The present petitioners, being legal heirs of the

deceased, did not file the application before the Appellate

Court for implement them as a party appellant. There was

a delay of 65 days in filing the application for joining them

as a party appellant. The petitioners moved an application

Exh.31, stating therein the reasons for delay in filing the

application and prayed that the delay of 65 days caused in

filing the application to join them as a party appellant be

condoned as cause of action of the suit is still survived.

The learned Second District Judge did not convince and

satisfy with the reasons preventing the petitioners in filing

the application for joining them as a party and rejected the

application.

4. Mr.Jamsed Kavina, learned counsel appearing for and on

behalf of the petitioners submitted that in the

C/SCA/12088/2012 ORDER DATED: 23/06/2023

circumstances of the present case, the petitioners who are

legal heirs of original plaintiff resided at different places as

a result, delay had been caused in filing application for

joining as a party appellant. He further submitted that

considering the merits of the case, the cause of the suit is

still survived and therefore, the petitioner should be given

an opportunity to contest the case on merits.

5. In view of the aforesaid submissions, learned counsel

Mr.Kavina, submitted that the learned Trial Court adopted

technical approach and failed to appreciate the facts that

refusing to condone the delay can result in a meritorious

matter being thrown out at the very threshold and cause of

justice being defeated. Thus, this is a fit case to exercise

powers under Article 227 of the Constitution of India.

6. On the other hand, learned counsel Mr.Zubin Bharda

vehemently opposed the petition and contended that the

learned Trial Court, while rejecting the applications, has

assigned proper and sufficient reasons which does not

require interference by this Court. He further submitted

that the appeal has abetted for which no prayer is made to

set aside the abatement, and therefore, the impugned

order does not suffer any infirmity so as to warrant

C/SCA/12088/2012 ORDER DATED: 23/06/2023

interference in exercise of jurisdiction under Article 227 of

the Constitution of India.

7. Having heard learned advocates for the respective parties

and on perusal of the impugned order, it appears that the

Appellate Court has dismissed the applications, mainly on

the ground that the petitioners have suppressed the facts

of their residence. This Court is of the considered view that

the Trial Court overlooked the fact that the petitioners are

admittedly from the rural area and it would not be fair to

presume that they know that on the death of plaintiff, the

legal representatives have to be brought on record within

certain time. Thus, therefore, this Court is of the

considered view that the Trial Court ought have condoned

the delay and allowed the application for bringing the legal

representatives of the deceased on record as a party

appellant. It is settled law that the provisions of Order 22

of the CPC are not penal in nature. It is a rule of procedure

and substantial right of the parties cannot be defeated by

pedantic approach by observing strict adherence to the

procedural aspect of law.

8. For the foregoing reasons, this Court is of view that the

impugned order is not sustainable in law and the same is

C/SCA/12088/2012 ORDER DATED: 23/06/2023

hereby quashed and set aside. The delay caused in

bringing the legal representatives of the deceased on record

is hereby condoned. The application Exh.33 is hereby

allowed. The abatement is set aside. The petitioners, being

legal heirs of original plaintiff, are permitted to join as a

party appellant in the civil appeal as referred above. The

necessary amendment be carried out in accordance with

law.

9. Accordingly, present petition is allowed in the aforesaid

terms.

Direct Service is permitted.

(ILESH J. VORA,J) Rakesh