Koli Manguben Chhaganji (Decd) vs The State Of Gujarat
2024 Latest Caselaw 5375 Guj

Gujarat High Court

Koli Manguben Chhaganji (Decd) vs The State Of Gujarat on 24 June, 2024

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     C/SCA/6343/2024                              ORDER DATED: 24/06/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 6343 of 2024
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                KOLI MANGUBEN CHHAGANJI (DECD) & ORS.
                                 Versus
                      THE STATE OF GUJARAT & ORS.
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Appearance:
for the Petitioner(s) No. 2,3,3.1,3.2,3.3,3.4,4,5
MR RAKESH R PATEL(3239) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MR ROHAN RAVAL AGP NOTICE SERVED for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 24/06/2024

                             ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for the respondent State.

2. Heard learned advocate Mr. Rakesh Patel for the petitioner and learned AGP.

3. The petitioner has filed present petitions under Article 227 of the Constitution of India challenging the order passed by the learned trial Court, Banaskantha @ Palanpur, whereby the application for joining legal heirs of the deceased under Order 22 of the Civil Procedure, 1908 has been rejected inter alia on the ground that the application is moved after a period of delay of more than 10 years, the details of which are as under:-

Name of           Date of     LAR No.         CMA No.        Delay
deceased          Expire
Shri Koli         30/07/2009 41/2017          09/2021        13 years
Chhaganji
Umedji







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     C/SCA/6343/2024                                    ORDER DATED: 24/06/2024

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4. From the impugned judgment and award, it was garnered that after passing judgment and award passed by the learned Reference Court, the respective petitioner has expired as mentioned in the aforesaid table. Therefore, the legal heirs and representatives of the respective petitioner preferred respective CMAs. However, the learned trial Court rejected said CMAs on the ground of delay in preferring the CMAs.

5. What appears on perusal of the impugned order that the learned trial Court has taken complete hyper-technical approach and allow to go-by the fundamental principle that procedural laws are handmaid to the substantial justice. The learned trial Court without understanding the provisions of Order 23 Rule 3 of the CPC decided the applications and as such, arrived at an error. The judgment of this Court in case of Patel Kashuben Narottambhai Vs. Special Land Acquisition Officer reported in 2009(2) GLR 1421 can be pressed into service. The relevant para 6 to 8 reads as under:-

"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 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

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C/SCA/6343/2024 ORDER DATED: 24/06/2024

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

6. Applying the law laid down by the Division Bench of this Court in the above case, the petition requires to be allowed.

7. It can be noticed that Order 1 Rule 10 of the CPC enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved. Observations of the Hon'ble Apex Court in case of Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya

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C/SCA/6343/2024 ORDER DATED: 24/06/2024

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(Deceased) re[prted om (2017) 9 SCC 700 reads as under:-

"Order 1 Rule 10 of the Code enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 empowers the court to substitute a party in the suit who is a wrong person with a right person. If the court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. In the matter on hand, the sale was made in favour of Defendant 7, and the validity of the sale deed was the subject- matter of the suit. The purchaser of the property i.e. Defendant 7, though dead at the time of filing the suit, was made one of the defendants erroneously. Normally, if the plaintiff had known about the death of one of the defendants at the c time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The persons who are now sought to be impleaded under Order 1 Rule 10 are the legal representatives of the deceased Defendant 7. Therefore, the presence of the legal representatives of the deceased is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions in the suit. Their presence is necessary in the suit for the d determination of the real matter in dispute. Therefore, they are needed to be brought on record, of course, subject to the law of limitation, as contained under Section 21 of the Limitation Act. Since one of the defendants i.e. Defendant 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant 7 under Order 1 Rule 10, for the simple reason that the plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties subject of course to the law of limitation."

8. As noted above, the learned trial Court has taken total hyper-technical approach to deny the relief claimed by the petitioner and permit to array as the petitioner to substitute in place of original deceased applicant.

9. For the foregoing reasons, present petition is allowed and

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C/SCA/6343/2024 ORDER DATED: 24/06/2024

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the impugned order is hereby quashed and set aside. Relief claimed in CMA is hereby granted. The trial Court before allowing to join the heirs of deceased shall make necessary inquiry as per O.22 R.4 of CPC including the identity of the legal heirs of the deceased.

10. The office of the learned Court below shall carry out necessary amendment in the cause title of the LAR as well as in the cause title of all subsequent proceedings/orders.

11. Rule is made absolute to the aforesaid extent.

(J. C. DOSHI,J) sompura