Anilpari S/O Batukpari Atit ... vs Shankaerbhai Makhabhai ...
2023 Latest Caselaw 6482 Guj

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    C/SCA/14426/2023                                      ORDER DATED: 05/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            R/SPECIAL CIVIL APPLICATION NO. 14426 of 2023

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                 ANILPARI S/O BATUKPARI ATIT (GOSWAMI)
                                 Versus
                  SHANKAERBHAI MAKHABHAI (ADIKHASI)
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Appearance:
MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 05/09/2023

                                  ORAL ORDER

[1] The applicants are heirs of Batukpari

Kasturpari Atit (Goswami) who was original

claimant in MACP no.388/1998 which was filed

on 1.12.1998. The judgment was delivered on

11.4.2008. Aggrieved by the judgment, First

Appeal no.93/2009 preferred by the claimant

came to be partly allowed vide judgment dated

7.12.2022.

[2] Mr. Shah submits that the death of the

original claimant on 22.12.2008 was not

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informed to the advocate on record. Mr. Shah

submits that the appeal would not stand abated

and the final judgment would have the effect

and force as if pronounced before the death

took place. Mr. Shah submits that original

claimant died after filing of the appeal and

it is not the case that he had died during the

course of the trial of the original MACP. The

award was in favour of the appellant. The only

prayer was for the enhancement of the amount.

Mr. Shah submits that had it been the case

that the appeal would not have been filed, the

present applicants as heirs and legal

representatives would be entitled for the

amount as has been deposited by the insurance

company.

[3] Referring to the provision of Order XXII Rule

6 of the Code of Civil Procedure, 1908, Mr.

Shah submits that the provisions are made for

the benefit of the parties and the parties

should not suffer in case the judgment is

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pronounced. Mr. Shah submits that the appeal

would be continuation of the suit and when the

judgment and award had been passed in favour

of the appellant, the same would continue in

his favour and any enhancement to that amount

would add to the original award as would stand

modified to that extent as in the present case

too, by judgment dated 7.12.2022 in First

Appeal no.93/2009, the judgment and award

passed by the learned Tribunal so far as

apportionment of the compensation between two

tort feasors made was ordered to be modified

and the appellant as original claimant was

made entitled to recover compensation of

Rs.67,688/- with interest at the rate of 7.5%

per annum jointly and severally from all the

respondents.

[4] Mr. Shah thus stated that the order passed in

the appeal would relate to the date of the

judgment and award in the original MACP, where

on that day, the appellant as original

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claimant was alive and the present applicants

as heirs and legal representatives would be

entitled to receive the said amount as stood

modified to the award passed in favour of the

original claimants.

[5] Mr. Shah has also referred to the judgment of

the Hon'ble Apex Court in the case of Banwari

Lal v. Balbir Singh, reported in (2016) 1 SCC

607 to submit that the provision of Order XXII

of CPC are not penal in nature and it is a

rule of procedure and substantial rights of

the parties cannot be defeated by pedantic

approach by observing strict adherence to the

procedural aspects of law. Mr. Shah has

referred to the judgment in the case of Sardar

Amarjit Singh Kalra v. Pramod Gupta, reported

in (2003) 3 SCC 272, decided by Five Judge

Bench of the Hon'ble Supreme Court, wherein it

has been held in the case of Banwari Lal

(supra) in Paragraph 26 as under:-

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"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the

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applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice..."

[6] In view of the principles laid down in the

referred judgment, the applicants at present

are the legal heirs of the original claimant-

deceased Batukpari Kasturpari Atit (Goswami).

The original judgment and award was in his

favour and being aggrieved by the amount

granted, had prayed for enhancement. The

appeal was registered on 8.7.2008. As per the

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record in First Appeal (Stamp) no.2290/2008,

the office objections were removed before

23.10.2008 and thereafter, the matter came to

be admitted on 23.1.2009. Mr. Shah submits

that the matter was registered on 8.7.2008 and

thereafter, on 22.12.2008, the original

claimant died. The fact that on 23.1.2009, the

matter was ordered to be admitted would not

have an adverse effect on filing of the

appeal, where on that day, the appellant was

alive. In the case of Banwari Lal (supra), it

has been observed that it would be un-just to

non-suit the appellant on the ground of

technicality. The provision of Order XXII Rule

6 of CPC are not penal in nature and it is a

rule of procedure and substantial rights of

the parties cannot be defeated by pedantic

approach by observing strict adherence to the

procedural aspects of law. Here in this case,

the judgment and award was in favour of the

appellant. The appeal was to be considered

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only on the grounds raised by him as he was

not satisfied with the compensation amount.

There was no enhancement to the award amount.

Only the recovery was ordered to be made

jointly and severally. However, in this case,

the award amount is already deposited before

the Tribunal and the award dated 11.4.2008

shows the total court fee recoverable on

Rs.67,688/- which fact reflects that there was

no enhancement in the appeal and thus, the

very fact proves that on the date of the award

passed by the Tribunal, the original MACP

no.388/1998 was in favour of the original

claimant and thus, after his death on

22.12.2008, the present applicants would be

entitled to the amount as legal heirs and

representatives of the deceased - Batukpari

Kasturpari Atit (Goswami).

[7] In the result, the present petition is

allowed. The total amount which is deposited

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before the Tribunal be disbursed in equal

proportion to all the applicants. Direct

service is permitted.

(GITA GOPI,J) Maulik