Gujarat High Court

Heirs Of Decd. Meghajibhai ... vs State Of Gujarat on 23 June, 2023

Bench: Biren Vaishnav

    C/SCA/16457/2019                                   JUDGMENT DATED: 23/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16457 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 16458 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 16459 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 16460 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 16461 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 16462 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 16463 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI

and
HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
    HEIRS OF DECD. MEGHAJIBHAI BALUBHAI / HEIRS OF DECEASED
                    CHOTHIBEN MEGHAJIBHAI
                            Versus
                      STATE OF GUJARAT
==========================================================
Appearance:
MR NITIN M AMIN(126) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,2,2.1,2.2,2.3,2.4,2.5,2.5.1,2.5.2,2.5.3,2.5.4
for the Respondent(s) No. 2,3


                                    Page 1 of 10

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    C/SCA/16457/2019                           JUDGMENT DATED: 23/06/2023




MR.KRUTIK PARIKH, AGP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
       JUSTICE A.J.DESAI
       and
       HONOURABLE MR. JUSTICE BIREN VAISHNAV

                          Date : 23/06/2023

                      COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. RULE returnable forthwith. Mr.Krutik Parikh

learned AGP waives service of notice of Rule on

behalf of the respondent State.

2. With the consent of learned advocates for the

respective parties, the petitions are taken up for

final hearing.

3. In all these petitions under Article 226 and 227

of the Constitution of India, the petitioners had

challenged orders passed by the 3rd Senior Civil

Judge, Junagadh, in the respective applications

filed by the petitioners under Order 22, Rule 9 of

C/SCA/16457/2019 JUDGMENT DATED: 23/06/2023

the Code of Civil Procedure. By the orders under

challenge, such applications filed by the

respective petitioners have been rejected.

4. For the purposes of this judgement, facts of SCA

No.16457 of 2019 are considered.

5. By judgement and award in respective land

reference cases, the land references were

decided by the 3rd Senior Civil Judge, Junagadh,

in October 2017. The petitioners are the heirs of

the beneficiaries of the award. It is their case

that they are heirs of the original land

owners/claimants who had died during pendency

of the reference. No applications for they being

brought on record as heirs of the claimants were

filed. The petitioners have filed First Appeals

against the award and decree dated 25.10.2017

before this Court in the respective land reference

C/SCA/16457/2019 JUDGMENT DATED: 23/06/2023

cases.

6. Since, no applications were filed for they being

brought on record as heirs and the award was

passed in the name of original claimants, they

approached the Civil Court by filing applications

under Order 22 Rule 9 of the Code of Civil

Procedure for bringing them as heirs of the

original claimants in the awards which were

disposed of. This was pursuant to the orders

passed in the First Appeals.

7. By the impugned orders under challenge, their

applications for setting aside abatement and for

bringing them on record in the original

references have been dismissed on the ground

that, in the opinion of the learned Civil Judge, the

reference Court has become functus officio upon

rendering the judgement and the award.

C/SCA/16457/2019 JUDGMENT DATED: 23/06/2023

8. Mr.Nitin Amin learned counsel for the petitioners

would submit that the orders under challenge

are bad. Relying on a decision of the Division

Bench in the case of Patel Kashuben

Narottambhai and Anr. v. Special Land

Acquisition Officer, Ahmedabad and Anr.

reported in 2009 (2) GLR 1421, Mr.Amin would

submit that the Division Bench has categorically

held that the refusal by the Reference Courts to

entertain such applications is misconceived. He

would submit that the Division Bench of this

Court has categorically quashed such orders with

a specific direction that the reference court will

not drive the heirs of deceased claimants to this

Court unnecessarily.

9. Having heard Mr.Amin learned advocate for the

petitioners and Mr.Krutik Parikh learned AGP for

the State and having perused the orders

C/SCA/16457/2019 JUDGMENT DATED: 23/06/2023

impugned in these petitions, it is clear that the

sole ground on which the applications filed by

the petitioners have been rejected is that the

learned Civil Judge is of the opinion that after the

awards have been declared, he would become

functus officio. In the case of Patel Kashuben

Narottambhai and Anr. (supra), a Division

Bench of this Court has categorically held that

that, obvious it is that upon the death of the

original claimant if his heirs are not brought on

record within the time stipulated under the law

of limitation, the reference would abate and

therefore such application filed by the heirs of

the deceased would have to be treated as

application for setting aside abatement with a

prayer for condoning delay, if any, and also an

application for being brought on record as the

heirs of the deceased claimant, again with a

prayer for condonation of delay.

C/SCA/16457/2019 JUDGMENT DATED: 23/06/2023

10. The Division Bench has held that the reference

Court can still exercise the powers of setting

aside abatement, bring on record the heirs of the

deceased claimant and pass a fresh award in

favour of the heirs of the deceased-claimant.

Relevant paragraphs of the said judgement are

reproduced hereunder:

"6. Having heard the learned advocates for the parties, we are of the view that when the attention of the Reference Court was invited to the fact that the original claimant had expired during pendency of the reference, the Reference Court ought to have considered

(i) whether the claimant in question at whose instance the reference was made to the Court, has expired,

(ii) whether the applicants are the legal heirs of the deceased claimant, and

(iii) whether the award would be required to be modified to reflect this circumstance.

It is obvious that upon the death of the original claimant, if his heirs are not brought on record within the time stipulated under the law of limitation, the reference

C/SCA/16457/2019 JUDGMENT DATED: 23/06/2023

would abate and therefore, such application by the heirs of the deceased would have to be treated as application for setting aside abatement with a prayer for condoning delay, if any, and also an application for being brought on record as the heirs of the deceased claimant, again with a prayer for condonation of delay. The Reference Court would, thereupon, be required to modify the award in light of the findings already recorded in the common judgment covering the reference filed by the claimant who has died during pendency of the reference and the reference filed by the other claimants.

7. We have been coming across a number of cases where the Reference Court declines to entertain such applications as if the Reference Court becomes functus officio upon rendering the judgment and the award. Once the aforesaid aspects are considered, it is apparent that the Reference Court can still exercise the powers of setting aside abatement, bring on record the heirs of a deceased claimant and passing a fresh award in favour of the heirs of the deceased claimant.

8. We also make it clear that while the provisions of the Limitation Act may not be applicable to the Reference to be made under Section 18 of the Act, once made, in absence of any other provision regarding bringing on record the heirs of a claimant who dies during pendency of the reference, the provisions of Order 22 CPC and the provisions of the Limitation Act for bringing

C/SCA/16457/2019 JUDGMENT DATED: 23/06/2023

on record the heirs of the deceased party will apply."

11. In light of the aforesaid decision, the orders

impugned and challenged in these petitions are

quashed and set aside.

12. We accordingly allow all these petitions and

direct that upon an application being made on

affidavit with the death certificate of the

deceased-claimants and with necessary prayers

for setting aside abatement with a prayer for

condonation of delay and application for being

brought on record as the heirs of the deceased-