Hemendra Ramprasad Sharma vs Mehulkumar Parshottambhai Patel
2023 Latest Caselaw 2466 Guj

    C/CA/902/2022                                        ORDER DATED: 23/03/2023




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CIVIL APPLICATION NO.                     902 of 2022

   In R/CIVIL REVISION APPLICATION NO. 167 of 2023
                          With
     R/CIVIL REVISION APPLICATION NO. 167 of 2023
=====================================================
               HEMENDRA RAMPRASAD SHARMA
                         Versus
            MEHULKUMAR PARSHOTTAMBHAI PATEL
=====================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR RUSHABH R SHAH(5314) for the Respondent(s) No.
1,2,3,4
=====================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 23/03/2023

                              ORAL ORDER

1. With the consent of the learned advocates

appearing for the parties, the application for

leave to appeal as well as Civil Revision

Application both are taken up together for final

disposal.

2. By way of present civil revision application,

the applicant has challenged the order dated

17.3.2022 passed by Second Additional District

Judge, Navsari in Regular Civil Appeal No.24 of

C/CA/902/2022 ORDER DATED: 23/03/2023

2009 and thereby confirming the judgment, order

and decree dated 26.2.2009 passed by the learned

Additional Civil Judge, Navsari whereby allowed

the Regular Civil Suit No.71 of 2006.

3. Without elaborately stating the fact of the

matter, in this application for leave to appeal,

it is the specific case of learned advocate Mr.

Zubin Bharda that original defendant Ramprasad

Fodiram Sharma after having failed in Regular

Civil Suit No.71 of 2006 as the same was allowed

in favour of the original plaintiffs preferred

Regular Civil Appeal No.24 of 2009, when the

appeal was filed he was alive.

3.1 During pendency of the appeal, the

original defendant Ramprasad Fodiram Sharma died

and thereafter, his son Hemendra Ramprasad

Sharma preferred an application for bringing

legal heirs of Ramprasad Fodiram Sharma on

record however, the said application remained

undecided. During the pendency of the Regular

Civil Appeal the plaintiff No.4 also died, for

C/CA/902/2022 ORDER DATED: 23/03/2023

which also an application for bringing legal

heirs of Original Plaintiff No.4 on record was

preferred by the legal heirs of Ramprasad

Fodiram Sharma. However, both these applications

remained pending and never decided, though the

appeal was decided and held against the

Ramprasad Fodiram Sharma.

3.2 According to learned advocate Mr. Zubin

Bharda, it was an error committed by the

Appellate Court that despite the applications

for bringing legal heirs of Original Plaintiff

and Defendant were their on record, without

passing any order on those two applications, the

appeal was dismissed and therefore, according to

learned advocate Mr. Zubin Bharda, the present

applicant who happens to be the son of original

defendant Ramprasad Fodiram Sharma, despite

having brought it to the notice of the Court

that the original defendant as well as plaintiff

No.4 have expired and there legal heirs are

required to be joined on record, the Court did

C/CA/902/2022 ORDER DATED: 23/03/2023

not pass any order on those two applications and

proceed with the appeal and decided against the

deceased Ramprasad Fodiram Sharma.

3.3 Therefore, learned advocate Mr. Zubin

Bharda submitted that considering the fact that

the original civil suit is of 2006, the order

under challenged is required to be quashed and

set aside and the matter is required to be

remanded back by directing the Appellate Court

to hear and decide the appeal within some time

bound scheduled.

4. Learned advocate Mr. Rushabh R. Shah appearing

for the respondents also submitted that as the

original plaintiffs have grievance against the

manner in which though appeal was filed by

Ramprasad Fodiram Sharma, application for stay

was signed by his son i.e. present applicant

viz. Hemandra Ramprasad Sharma and therefore, he

also preferred an application before the

Appellate Court pointing out the aforesaid

defect and seeking appropriate action. However,

C/CA/902/2022 ORDER DATED: 23/03/2023

that application also has remained undecided and

impugned order is passed. However, neither

learned advocate Mr. Zubin Bharda nor learned

advocate Mr. Rushabh Shah could submit that the

Appellate Court has not committed any error by

keeping those applications pending while

deciding the appeal.

5. Hence, ultimately both learned advocates Mr.

Zubin Bharda and learned advocate Mr. Rushabh

Shah submitted that this Court may quash and set

aside the impugned order dated 17.3.2022

however, considering the fact that dispute is

pending since 2006, the Appellate Court may be

directed to hear and decide the Regular Civil

Appeal No. 24 of 2009 within a period of six

months or whatever the period that the Court may

deem appropriate.

6. Both learned advocates appearing for the

respective parties, considering the fact that

they have requested for remanding back the

matter have not opted for any reasoned order.

C/CA/902/2022 ORDER DATED: 23/03/2023

7. In view of above, the present civil application

No. 902 of 2022 for leave to file a Civil

Revision Application is allowed and impugned

order dated 17.3.2022 passed in Regular Civil

Appeal No.24 of 2009 is hereby quashed and set

aside without opining anything on the merits of

the matter.

8. In view of that impugned order dated 17.3.2022

passed in Regular Civil Appeal No.24 of 2009 is

hereby quashed and set aside.

9. The Appellate Court i.e. Court of learned Second

Additional District Judge, Navsari is hereby

directed to hear and decide the Regular Civil

Appeal No.24 of 2009 latest by 31.10.2023. All

the rights and contentions of all the parties

are kept open.

10. Learned Appellate Court is also directed to

first decide the pending applications in respect

of bringing legal heirs on record as well as the

applications questioning the signature of

C/CA/902/2022 ORDER DATED: 23/03/2023

present applicant in the application for stay

(perjury according to learned advocate Mr.

Rushabh R Shah) and thereafter, to decide the

appeal as per the direction issued in forgoing

paragraphs.

11. With the aforesaid directions, the present

application for leave to appeal as well as Civil

Revision Application is disposed of.

12. It is clarified that this Court has not

gone into merits of the matter.

13. In view of the fact that the impugned order

dated 17.3.2022 is quashed by this Court,

Regular Civil Appeal No.24 of 2009 is restored

back to its original file.

14. Direct service is permitted.

(NIRZAR S. DESAI,J) Pallavi