Gujarat High Court
Arvindkumar Ganeshmal Dugar vs Kamaladevi W/O Kamalsingh Ganeshmal on 8 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9885 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 9886 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✔
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ARVINDKUMAR GANESHMAL DUGAR & ANR.
Versus
KAMALADEVI W/O KAMALSINGH GANESHMAL & ORS.
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Appearance:
MR NV GANDHI with MR VASIM MANSURI(8824) for the Petitioner(s) No.
1,2
ADITYA A GUPTA(7875) for the Respondent(s) No. 1,2
MOHIT A GUPTA(8967) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4,5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/04/2025
ORAL JUDGMENT
1. RULE returnable forthwith. Learned advocate Mr. Aditya
A. Gupta waives service of notice of Rule on behalf of
the respondents No.1 and 2. The other remaining
respondents have not filed their appearance.
2. As the issues involved in both the petitions are common,
with the consent of learned advocates for the parties, the
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above petitions are taken up for hearing today jointly
and are decided by this common judgment.
3. Both the writ petitions are filed under Article 227 of the
Constitution of India seeking the following main reliefs :-
In Special Civil Application No.9885 of 2017
"A) YOUR LORDSHIP may be pleased to issue writ of certiorari or
any other appropriate writ order or direction and be further pleased
to quash and set aside the impugned orders dated 09.02.2017; & be
further please allow the application for jointing as a legal
representative of Late Sirekumar, original Defendant no.1;"
In Special Civil Application No.9886 of 2017
"A) YOUR LORDSHIP may be pleased to issue writ of certiorari or
any other appropriate writ order or direction and be further pleased
to partly quash and set aside the impugned orders dated 08.02.2017;
be further pleased allow Vimaladevi Champalal Sethiya, Sayaradevi
Amargsingh Begani & Pukrajdevi Sushilkumar Sethiya to be join as
Defendant no.5 to 7 as a legal representative of Late Sreekumari,
original Plaintiff;"
4. The short facts of the cases are as under and as far as
possible, the parties may be referred as per the original
position in the Suit.
Special Civil Application No.9885 of 2017 :-
The petitioners are claiming to be legal heirs of the
original defendant No.1-Smt. Sirekumari Ganeshmal Dugar
whereas the respondents No.1 and 2 are the original
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plaintiffs of Civil Suit No.2938 of 2010 filed before the
City Civil Court, Ahmedabad against rest of the
respondents, who are defendants No.2 to 4. It appears
that during the pendency of the suit, the defendant
No.1-Smt. Sirekumari Ganeshmal Dugar died on
19.01.2013. The plaintiffs appear to have filed an
application below Exhibit 59 under Order 22 of the Civil
Procedure Code, 1908 (hereinafter referred to in short as
'the Code') to bring the legal heirs of the deceased
defendant No.1 which came to be not pressed by the
plaintiffs on 01.02.2017, whereby the trial Court vide its
order dated 01.02.2017 disposed of such an application
whereas the impugned application came to be filed by
the legal heirs of the defendant No.1, which is filed
below Exhibit 55 on 16.04.2013 which came to be heard
and decided by the trial Court vide its order dated
08.02.2017 and thereby, rejected such an application.
Special Civil Application No.9886 of 2017 :-
The petitioners herein are legal heirs of the original
plaintiff namely Smt. Sirekumari Ganeshmal Dugar and
she filed Special Civil Suit No.60 of 2008 before the City
Civil Court, Ahmedabad against the respondents. As
stated herein above, she died during pendency of the suit
on 19.01.2013. The respondents No.1 and 2 are
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defendants No.1 and 2 of said suit who happen to the
plaintiffs of Civil Suit No.2938 of 2010.
5. As the original plaintiff died on 19.01.2013, the
impugned application below Ex. 55 came to be filed by
the petitioners being legal heirs of plaintiff, came to be
partly allowed. Being aggrieved by the impugned orders
passed by the trial Court in the respective suits in the
respective applications filed by the legal heirs of the
deceased defendant No.1/plaintiff respectively have
chosen to file present writ petitions.
6. Submissions of the petitioners :-
Learned advocate for the petitioners, i.e. the legal of
deceased, Mr. N.V. Gandhi has submitted that the trial
Court has committed a glaring error in rejecting and
partly allowing the impugned application filed below
Exhibit 55 in the respective Suits by the petitioners. It is
further submitted that once a Suit has been instituted and
the defendant No.1-deceased has represented herself in
the Civil Suit No.2938 of 2010 being defendant No.1
having died, her legal heirs are required to be brought
on record.
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6.1 It is further submitted that the petitioners herein /
original applicants are Class I legal heirs of the deceased.
It is also submitted that the cause is surviving in favour
of the legal heirs who are required to defend the Suit as
well as pursue the Suit which has been instituted by the
deceased-Smt. Sirekumari Ganeshmal Dugar during her
lifetime.
6.2 Learned advocate Mr. N.V. Gandhi has submitted that
there is an express provision of law under Order 22 Rule
4 read with Order 5 of the CPC then, the trial Court
could not have relied upon Order 1 Rule 10 of the CPC
while adjudicating impugned applications.
6.3 It is further submitted that at one point of time, the
plaintiffs of Civil Suit No.2938 of 2010 themselves have
chosen to prefer an application to bring legal heirs on
record but for reasons best known to them have chosen
to withdraw it. It is also submitted that considering the
nature of controversy involved in both the suits and the
Gift Deed executed by the deceased, in her life time is
challenged by her and also challenged by the plaintiffs of
Civil Suit No.2938 of 2010, her legal heirs are required
to be brought on record to defend and pursue the Suit,
in accordance with law.
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6.4 It is further submitted that the trial Court has
committed a jurisdictional error in ignoring the provisions
of Order 22 Rule 4 read with Rule 5 of CPC and
committed an error of law while rejecting and partly
allowed the impugned applications respectively.
6.5 Lastly, learned advocate Mr. N.V. Gandhi would
further submit that there is no serious prejudice caused
to the plaintiffs of Civil Suit No.2938 of 2010, who
happen to be defendants No.1 and 2 of Civil Suit No.60
of 2008, if the impugned applications are allowed fully.
Making the above submissions, learned advocate Mr. N.V.
Gandhi has requested this Court to allow the present
petitions.
7. Submissions of the respondents No.1 and 2 :-
Learned advocate for the contesting respondents No.1 and
2 Mr. Aditya A. Gupta has vehemently opposed the
present petitions contending inter-alia that there is no
error much less any grave error and/or jurisdictional
error by the trial Court in either rejecting or allowing the
impugned applications filed by the petitioners.
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7.1 It is further submitted that the respondents No.1 and
2 herein are the original plaintiffs of Civil Suit No.2938
of 2010 who have consciously chosen not to bring the
legal heirs of the deceased-Smt. Sirekumari Ganeshmal
Dugar on record of the Suit and the petitioners have no
independent right to file the impugned applications.
7.2 It is submitted that so far as bringing legal heirs of
plaintiffs in Civil Suit No.60 of 2008 is concerned, the
trial Court has after considering provision of law and the
interest of only two persons who are allowed to be
brought on record, who are the legal representatives of
the deceased, and thus, no error has been committed by
the trial Court.
7.3 It is also submitted that in any case there is no scope
of interference of this Court while exercising its limited
power under Article 227 of the Constitution of India,
thereby this Court may not disturb the impugned orders
passed by the trial Court. Making the above submissions,
learned advocate Mr. Aditya A. Gupta has requested this
Court to reject the present petitions.
8. The short point which arises from the present writ
petitions are as to whether the legal heirs /
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representatives of the deceased are required to be
brought on record or not?
9. It is not a disputed fact that parties to both the sides are
family members of Civil Suit No.2938 of 2010, filed by
the son and daughter-in-law of defendant No.1-Smt.
Sirekumari Ganeshmal Dugar, who died during pendency
of the Suit and at a given point of time, the plaintiffs
themselves have chosen to file the applications to bring
the legal heirs on record which came to be not pressed
by them for the reasons best known to them. Be that as
it may, when there is an application filed by the legal
heirs of the deceased-Smt. Sirekumari Ganeshmal Dugar
to be brought on record, the trial Court could not have
rejected it on the ground that the said application could
not be entertained and the applications could have been
filed under Order 1 Rule 10 of CPC. It is undisputed
fact that the Gift Deed which was executed by the
defendant No.1 in favour of defendants No.2 to 4 of Civil
Suit No.2938 of 2010 and the same has been challenged
by way of the said Suit. The legal heirs of deceased-Smt.
Sirekumari Ganeshmal Dugar have a right to be joined
when defendant No.1 died in the Suit proceedings.
There is no express bar under Order 22 read with its
Rule 4/5 of the CPC that such applications are required
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to be filed only by the plaintiffs. In absence of such bar,
it would be appropriate to consider the applications so
filed by legal heirs of deceased-litigant.
10. Furthermore, when right to sue survives in favour
of legal heirs of defendant/plaintiff respectively, they are
required to be joined and brought on record of the Suit,
which will be in the interest of the plaintiffs of Civil Suit
No.2938 of 2010 as well. Once, it has come on record
that the petitioners are Class I legal heirs of deceased
defendant No.1-Smt. Sirekumari Ganeshmal Dugar, in my
opinion, such applications filed by the legal heirs of
deceased litigant are required to be allowed in respective
suits as there will be no prejudice caused to respondents
herein if the legal heirs of the deceased are brought on
record. Likewise, when the deceased has filed a Civil
Suit No.60 of 2008 challenging the Gift Deed allegedly
executed by her in favour of the defendants No.1 and 2
of that Suit, who happen to be the plaintiffs of Civil Suit
No.2938 of 2010 and right would survive in favour of the
legal heirs to pursue the Suit which has been instituted
by the deceased-Smt. Sirekumari Ganeshmal Dugar.
11. Considering the provisions of Order 22 of CPC and
keeping in mind the well-settled legal position that the
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rule of procedure is a handmaid of justice, and a hyper-
technical approach requires to be avoided by the Trial
Court, I would like to consider the impugned applications
thereby, to allow it.
12. It is a well-settled legal position that the rule of
procedure is a handmaid of justice, and a hyper-technical
approach requires to be avoided by the Trial Court. It is
profitable to rely upon recent past decision of Hon'ble
Apex Court in a case of Sugandhi (Dead) by Lrs. and
another v. Rajkumar Rep. by his Power Agent Imam Oli
reported in (2020) 10 SCC 706 wherein it is held as
under :-
"[9] It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not be
allowed to come in the way of the court while doing
substantial justice. If the procedural violation does not
seriously cause prejudice to the adversary party, courts must
lean towards doing substantial justice rather than relying
upon procedural and technical violation. We should not
forget the fact that litigation is nothing but a journey
towards truth which is the foundation of justice and the
court is required to take appropriate steps to thrash out the
underlying truth in every dispute....."
13. It is also well settled law that High Court should spar-
ingly exercise its power under Article 227 of the Constitu-
tion of India only in appropriate cases in order to keep
the subordinate courts within the bounds of their author-
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ity [Waryam Singh v/s Amarnath - AIR 1954 SC
215]. Having arrived at the aforesaid conclusion and
having found that trial Court has committed procedural
irregularity which requires to be corrected by this Court
while exercising its power under Article 227 of the Con-
stitution of India thereby, an interference requires in the
impugned order.
14. Considering the aforesaid aspect the case, when right to
issue survive in favour of the legal heirs of the deceased-
Smt. Sirekumari Ganeshmal Dugar, it would be appropri-
ate to allow the legal heirs of the deceased to be brought
on record in both the Suits. Thus, an offshoot, both the
impugned applications filed below Ex. 55 in Civil Suit
No.60 of 2008 and Civil Suit No.2938 of 2010 are hereby
allowed. The petitioners herein are allowed to be
brought on record in the respective Suits, i.e. Civil Suit
No.60 of 2008 and Civil Suit No.2938 of 2010, as the le-
gal heirs of deceased- Smt. Sirekumari Ganeshmal Dugar
being the plaintiff as well as defendant No.1 respectively.
15. Necessary amendment is to be carried out in the
respective suits by the parties. So, parties are hereby
allowed to file their amended copies of plaints / written
statement respectively. As Suits are of the year
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2008/2010, it would be appropriate that the parties
shall extend their co-operation and support to the trial
Court and if provided by the parties, the trial Court
shall expedite the Suit proceedings and try to adjudicate
both the Suits together in accordance with law,
preferably within ONE YEAR from the completion of the
pleadings of the parties albeit, without being influenced
by any of the observations made in the impugned order
in the applications or by this Court in the present
order.
16. Rule made absolute to the aforesaid extent. Direct
Service is permitted.
Sd/-
(MAULIK J. SHELAT, J)
CAROLINE / DB # 53 & 54
