Gujarat High Court
Prakash Natubhai Patel vs Jitendrakumar Vallabhbhai Patel on 25 January, 2024
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C/SCA/6168/2020 ORDER DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6168 of 2020
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PRAKASH NATUBHAI PATEL
Versus
JITENDRAKUMAR VALLABHBHAI PATEL
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Appearance:
MR HARSHAD K PATEL(2844) for the Petitioner(s) No. 1,2
MR RAJENDRAKUMAR G JOSHI(12690) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 25/01/2024
ORAL ORDER
1. The present petition is filed by challenging the
th
order dated 22.12.2017 passed by the learned 10 Addl.
Senior Civil Judge & J.M.F.C., Vadodara below Exh.24 in
Regular Civil Suit No.1548 of 1996, by which the learned
trial court was dismissed the application filed by the
petitioners for condonation of delay in bringing the legal
heirs of the deceased plaintiff and set aside the order of
abetment.
2. Brief facts as per the case of the present petitioners
in this petition are as such that the petitioners are the
legal heirs of Deceased Natubhai Motibhai Patel. The
father of petitioners viz. Natubhai Motibhai Patel has
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filed the Regular Civil Suit No. 1548 of 1996 challenging
the Will dated 11.12.1995 executed by deceased Panabhai
Maganbhai Patel in respect of the ancestral land of
father of petitioners being Block No.89 and 84 of village
Ankhol, Taluka & District-Anand. During the pendency of
the suit, the father of petitioners viz. Natubhai Motibhai
Patel expired. It is further the case of the petitioners in
this petition that the petitioners were not aware of the
filing or pendency of the above suit filed by their father.
The petitioners therefore could not file application for
bringing them as legal heirs of deceased Natubhai. The
petitioners learnt about the filing and pendency of the
above suit only on or around August 2013. It is further
the case of the petitioners in this petition that the
petitioners filed application Exh.24 to condone the delay
in bringing the legal heirs of deceased plaintiff, to set
aside the order of abetment and restore the suit. The
Ld. Trial Judge issued notice to the respondents. Upon
service of notice, the respondents filed their objections/
reply Exh.25 to the application Exh.24. The revenue
records in respect of the suit land record that the suit
lands were mortgaged to Ankhol Vikas Sahkari Mandali.
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The petitioners also filed written arguments vide Exh.33.
It is further the case of the petitioners in this petition
that however, without appreciating the facts, evidence
and circumstances of the case, the Ld. 10th Additional
Senior Civil Judge & JMFC, Vadodara by impugned
order rejected the application Exh.24 without considering
or dealing with the judgments cited in written arguments
Exh.33. Hence, this petition is preferred.
3. Heard Mr. Harshad K Patel, the learned counsel for
the petitioners and Mr. Rajendrakumar G. Joshi, the
learned counsel for the respondents.
4. Mr. Harshad K Patel, the learned counsel for the
petitioners has submitted that the impugned order passed
by the trial court is on the hypercritical consideration
and without considering the substantial cause involved in
the present petition as the present petitioners has no
reason to delay the proceeding and the delay, caused in
filing of the proceeding, is explained in the application
itself, which is filed for setting aside the abatment and
impleading the heirs as party. Furthermore, he has
submitted that the petitioners were not aware about the
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pendency of the suit proceeding and when she visited
some function and at that point of time, their near
relative has informed them about the pending of suit
proceeding to the petitioners. Therefore, the delay of
more than 11 yeas has caused in filing of such
application. Hence, he has submitted that in the larger
interest of justice, such application is required to be
considered. Furthermore, he has submitted that applicant
No.2 is wife of the deceased persons and since her
daughter had got married and her son has got shifted to
Surat for the purpose of job, the heirs are not brought
on record as they were not aware about the pendency of
the suit proceeding and, therefore, he has submitted that
the learned trial court has not properly considered the
above aspect. Furthermore, he has submitted that even
by imposing some cost, such delay should be condoned
and such proceeding should be permitted to be continued
and the petitioners should get the opportunity to face
the proceeding of merits.
5. Per contra, Mr. Rajendrakumar G. Joshi, the
learned counsel for the respondents has strongly objected
the contentions raised in the present petition by the
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learned advocate for the petitioners and has further
submitted that the petitioners were fully aware of the
pendency of the suit proceeding. He has drawn attention
of this Court towards the order dated 23.2.2005 passed
by the Deputy Collector Land Reforms, Vadodara in
Tenancy Revision Case No.12 of 2004 under Section 76(a)
of the Tenancy Act, wherein in paragraph 2 of that
order, it is recorded that the petitioner No.2 - Ushaben
Natubhai Patel has represented her case before the
Deputy Collector by filing the reply dated 18.1.2005, and
in that reply, she has also mentioned about the
pendency of the case pending in the Civil Court.
Therefore, he has submitted that it cannot be said that
petitioners were aware of the pendency of the proceeding
before the trial court. Hence, he has prayed to dismiss
the present petition.
6. Considering the rival submissions made at the bar
and taking into account the order passed by the trial
court, it transpires that the learned trial court has
rightly dealt with the various aspects involved in the
present petition. It is evident that the learned trial court
has also considered the factum that in the order of the
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Deputy Collector, knowledge about the pendency of the
civil court proceeding of the present petitioner No. 2 is
clearly recorded. Therefore, the assertions of the
petitioners in the application for condonation of delay, as
well as the averments made in the application, are
misleading and with a view to taking undue advantage
of the situation created by their negligence. Consequently,
I am of the opinion that the learned trial court has not
committed any error in law or jurisdiction on facts. More
particularly, when there is a gross delay of 11 years in
approaching the Civil Court through such an application,
the Court should take a strict view of the matter.
Accordingly, the Court has rightly dismissed the
application filed by the present petitioners. Therefore, I
find no merit in the present petition as no case is made
out to exercise my powers under Article 227 of the
Constitution of India, especially in view of the judgment
of the Hon'ble Apex Court in the case of M/s. Garment
Craft Versus Prakash Chand Goel reported in 2022 4
SCC 181, particularly paragraphs 15 to 17 are relevant.
7. Accordingly, the present petition is dismissed. Notice
stands discharged. Interim relief, if any, granted earlier
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stands vacated.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
