Gujarat High Court
Phatesinh Desaibhai Pathiyar Through ... vs Dhayahbhai Rasulbhai Diwan Through ... on 6 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6177 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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PHATESINH DESAIBHAI PATHIYAR THROUGH HEIRS & ANR.
Versus
DHAYAHBHAI RASULBHAI DIWAN THROUGH HEIRS & ORS.
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Appearance:
MR MITUL K SHELAT(2419) for the Petitioner(s) No. 1,1.1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 1
MR MEHUL S SHAH(772) for the Respondent(s) No. 1.1,1.2
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/08/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Mitual K. Shelat for the
petitioner and learned advocate Mr. Vishal C. Mehta for the
respondents no.1.1 & 1.2. Though served, non-appeared for
respondent No.2.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
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"a) This Hon'ble Court be pleased to issue a writ a certiorari or in
the nature of certiorari or any other appropriate writ, order or direction
quashing and setting aside the impugned orders dated 10.09.1996,
09.10.2002 and 11.03.2011;
b) This Hon'ble Court be pleased to set aside the order of
abatement of the suit and be further pleased to allow the application to
bring legal heirs of defendant no. 1 on record of Civil Suit No 166 of
1985;
c) Pending admission and final hearing your Lordships may be
pleased to restrain the Respondents from interfering with the
possession of the Plaintiff as regards the suit property;
d) Any other and further orders deemed fit in the interest of justice
may be passed."
3. Learned advocate Mr. Shelat would state that the
petitioner herein is original plaintiff of Regular Civil Suit No.
166 of 1985 filed against the respondents including
predecessor of respondent No. 1.1 & 1.2 who happens to be
original defendant No.1. He would state that the defendant
No.1 died on 03.11.1988 but the knowledge of death of
defendant No.1 was neither known to the plaintiff nor made
aware by his advocate, which resulted into delay in filing the
application to bring his legal heirs on record. He would
further states that at the relevant point of time, on getting
information about the death of defendant No.1 in the year
1995, an application came to be filed by the petitioner on
13.12.1995 but the same was rejected in absence of plaintiff/
his Lawyer by the trial Court on 10.09.1996.
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3.1 Learned advocate Mr. Shelat would further state that
the review application also filed below Exh. 48 pointing out
that the plaintiff was not aware about the death of
defendant no.1 and in fact affidavit of lawyer and his clerk
were also submitted to the effect that copy of application to
bring legal heirs of defendant No.1 on record was submitted
being process copy to be served upon legal heirs of
defendant No.1. He would further states that despite all
efforts, review application came to be rejected by the trial
Court vide its order dated 09.10.2002.
3.2 So, learned advocate Mr. Shelat would submit that the
plaintiff has no other option but to file an application below
Exh. 72 in the suit seeking condonation of delay in filing the
application to bring legal heirs of defendant No.1 and so also
requested the trial Court to set aside the abatement of suit
qua defendant No.1. He would further states that such
application filed below Exh. 72 also came to be rejected by
the trial Court vide its order dated 11.03.2011. So, the
plaintiff has no other option but to question all these orders
by filing the present writ application.
3.3 Learned advocate Mr. Shelat would respectfully submit
that the order dated 10.09.1996 whereby, the trial Court first
rejected the application filed below Exh. 47 in absence of
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plaintiff and or his lawyer is not only erroneous but so also
perverse. He would submit that as such observations made
by the trial Court is not fully correct inasmuch as there is
nothing on record to show that the plaintiff made aware
about the death of defendant No.1 in the year 1988 when he
died. He would further submit that copy of process of
application was already submitted on record to be served
upon the legal heirs of defendant No.1.
3.4 Learned advocate Mr. Shelat would further submit that
review application was also erroneously rejected by the trial
Court without adverting to the issue germane in the
application, inasmuch as the affidavits submitted on record
of learned advocate and his clerk, engaged by the plaintiff
were not considered.
3.5 Learned advocate Mr. Shelat would further submit that
the application filed below Exh.72 seeking condonation of
delay and setting aside the abatement, require to have been
allowed by the trial Court, as previous orders passed by the
trial Court either in absence of plaintiff and his lawyer or
overlooking the material available on record. It is submitted
that rule of procedure is hand-maid of justice and hyper
technical approach requires to be avoided by the trial Court
while adjudicating such type of applications.
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3.6 Learned advocate Mr. Shelat would further submit that
the plaintiff has explained the delay and made out a case of
setting aside abatement of suit qua defendant No.1. It is
submitted that the plaintiff was not aware about the death
of defendant No.1 at the relevant point of time but he was
made aware on 01.12.1995 when old friend of defendant
No.1 met in bazar of village Padre, had informed about the
death of defendant No.1. It is further submitted that the
defendant No.1 was not even residing in the village at the
time of his death and no one in his village was aware about
his death.
3.7 Learned advocate Mr. Shelat would further submit that
the trial Court has not considered all these aspects of the
matter and erroneously observed that there was delay of
around 14 years in bringing legal heirs of defendant No.1
only on such count, the impugned application filed below
Exh.72 came to be rejected. It is submitted that the trial
Court was required to take liberal approach while
adjudicating such type of application, wherein right of the
parties cannot be frustrated on mere technicality.
3.8 To buttress his argument, learned advocate Mr. Shelat
would refer and rely upon the decision of the Hon'ble Apex
Court in the case of Om Prakash Gupta Alias Lalloowa
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(Now ... vs Satish Chandra (Now Deceased) reported in
2025 SCC Online SC 291 : (2025) INSC 183.
3.9 Making the above submission, learned advocate Mr.
Shelat would request to this Court to allow the present writ
application.
4. Per contra, learned advocate Mr. Vishal C. Mehta for
the respondents No. 1.1 & 1.2 would submit that there is no
error much less any gross error of law committed by the trial
Court while rejecting he impugned applications and as such,
there was delay on the part of plaintiff to bring on record of
legal heirs of defendant No.1. He would further submit that
when first application filed by the plaintiff below Exh. 47 to
bring on record the legal heirs of defendant No.1 on record
of the suit, there was no prayer made for either setting aside
abatement and or seeking condonation of delay and in that
view of the matter, no fault can be found with the trial Court
when it rejected such application vide its order dated
10.09.1996.
4.1 Learned advocate Mr. Mehta would further submit that
the review application also filed which was rejected by the
trial Court with reasoned order and as such, there is no error
committed by the trial Court. He would further submit that
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after about 14 years from the date of death of defendant
No.1, the impugned application filed below Exh. 72 by the
plaintiff for setting aside abatement and seeking
condonation of delay in bringing legal heirs of defendant
No.1, was misconceived application and correctly rejected by
the trial Court. It is submitted that it was the duty upon the
plaintiff to bring on record the legal heirs of defendant No.1
and having not done so within stipulated time, the suit got
abated, it was within the knowledge of the plaintiff when
first application was filed.
4.2 Learned advocate Mr. Mehta would further submit that
this Court having limited jurisdiction under Article 227 of the
Constitution, should not interfere with the impugned orders
passed by the trial Court, inasmuch as there is no irregularity
and illegality and or jurisdictional error committed by the
trial Court while rejecting the applications filed by the
petitioner- plaintiff.
4.3 Making the above submission, learned advocate Mr.
Mehta would request this Court to reject the present writ
application.
Point for determination
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Whether in the facts and circumstances of the present
case, is there any gross error of law and or jurisdictional error
committed by the trial Court while rejecting the applications
filed by the petitioner- original plaintiff ?
Analysis
5. It remain undisputed that as not controverted by the
respondent No.1.1 and 1.2 that during the life time of
defendant No.1, he never filed any written statement
though appeared through lawyer. It is also not in dispute
that death of defendant No.1 was never informed by his
lawyer either to the plaintiff/his lawyer or submitted
anything on record of the suit.
6. It is true that defendant No.1 died on 03.11.1988. In
these set of facts and circumstances of the case, plaintiff
could have easily requested the trial Court to proceed with
the suit in absence of legal heirs of defendant No.1 by
placing reliance upon Order 22 Rule 4 sub-rule 4 of CPC. It
reads as under,
"Order 22, Rule 4 (4) which reads:-
"The Court whenever it thinks fit, may exempt the plaintiff from the
necessity of substituting the legal representatives of any such defendant
who has failed to file a written statement or who, having filed it, has
failed to appear and contest the suit at the hearing; and judgment may,
in such case, be pronounced against the said defendant notwithstanding
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the death of such defendant and shall have the same force and effect as
if it has been pronounced before death took place."
7. Having not requested the trial Court to follow recourse
available as aforesaid, when it came to knowledge of the
plaintiff on 01.12.1995, he filed an application below Exh. 47
to bring on record legal heirs of defendant No.1. Such
application was filed on 13.12.1995. It appears that the trial
Court had issued notice to legal heirs of defendant No.1 and
at relevant point of time, no objection was raised by the trial
Court about not filing any delay application and or prayer to
be made for setting aside the abatement of suit qua
defendant No.1.
8. Be that as it may, in absence of plaintiff and his lawyer,
the first impugned order came to be passed by the trial
Court on 10.09.1996 observing that though defendant No.1
died on 03.11.1988, but the application to bring his legal
heirs on record was filed on 13.12.1995, which is not found
within the period of limitation. It is further observed that no
satisfactory explanation coming forth from the plaintiff, not
to file such application in time. It would lastly observed that
process copy is not supplied by the plaintiff and there is an
abatement of suit qua defendant No.1. Nonetheless, the trial
Court has not rejected the application but only observed
that the suit qua defendant No.1 stands abated.
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9. When this Court minutely examined the application
filed below Exh. 47, in the first para itself, the plaintiff has
disclosed that he came to know about the death of
defendant No.1 on 01.12.1995. As observed hereinabove, it
is not the case of any respondents including the defendant
No.2 whose advocate was present on the said date when
impugned order was passed by trial Court that date of death
of defendant No.1 was made known by the plaintiff by any
means prior to 01.12.1995.
10. So, in that view of the matter, the trial Court could not
have passed such an order that too in absence of plaintiff
and his lawyer and even not granting any opportunity to cure
the defects if any remained while filing such application.
According to my view, to that extent, the impugned order
requires interference by this Court.
11. When the trial Court was confronted with review
application pointing out such error apparent on the face of
record, at that stage itself, the trial Court could have
exercised its positive discretion in favour of the plaintiff by
reviewing its order passed on 09.10.2002 but unfortunately
for the plaintiff, it was not done so. Having no other option
left, finally the plaintiff had file the impugned application
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below Exh. 72 thereby, he prayed for setting aside
abatement of the suit as well as sought for condonation of
delay in filing the application to bring legal heirs of
defendant No.1. The impugned application came to be filed
on 10.12.2002 which is within two months from the rejection
of his review application.
12. With this background of facts, when the impugned
application came to be filed by the plaintiff giving all set of
particulars about how plaintiff gathered the knowledge of
date of death of defendant No.1, such application could not
have been rejected on mere technicality that it was filed
after about 14 years from the date of death of defendant
No.1. It is surprised to note that despite noticing the
judgment of the Hon'ble Apex Court in the case of
Balakrishnan Vs. M. Krishnamurti reported in (1998) 7 SCC
123, such view taken by the trial Court. As such it is clearly so
held by Hon'ble Apex Court in Balakrishnan (supra), which
reads as under :-
"[9] It is axiomatic that condonation of delay is a matter of discretion
of the Court. Section 5 of the Limitation Act does not say that such
discretion can be exercised only if the delay is within a certain limit.
Length of delay is no matter, acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range may be uncondonable
due to want of acceptable explanation whereas in certain other cases
delay of very long range can be condoned as the explanation thereof is
satisfactory. Once the Court accepts the explanation as sufficient it is
the result of positive exercise of discretion and normally the superior
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Court should not disturb such finding, much less in revisional
jurisdiction, unless the exercise of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is a different matter when the
first Court refuses to condone the delay. In such cases, the superior
court would be free to consider the cause shown for the delay afresh
and it is open to such superior Court to come to its own finding even
untrammeled by the conclusion of the lower Court."
13. Law on the issue of delay is well settled, wherein it has
been consistently held by the Hon'ble Apex Court in its
number of decisions that while adjudicating the delay
applications, liberal approach requires to be adopted by the
Court, thereby it can sub-serve the justice to the parties.
Only in a case where there is negligence, dilatory tactics
used, the statement or any suppression of fact etc, in all
other cases when delay application is filed with a proper and
sufficient explanation making out the case of sufficient
cause, the Court is require to accept such explanation and
needs to condone the delay. So, it can advance justice to the
parties. Once the delay will be condoned by the Court, it can
decide the lis between the parties on its merit which is a
desirable course to be adopted by the Court as its role is to
advance justice, not to do injustice.
14. At this stage, it would also apt to refer and rely on the
decisions of the Hon'ble Apex Court in the case of Om
Prakssh Gupta (supra), wherein paragraphs 22 and 23 read
as under:
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"9. The principles to guide courts while considering applications for
setting aside abatement and application for condonation of delay in filing
the former application are laid down by this Court in Perumon
Bhagvathy Devaswom v. Bhargavi Amma. An instructive passage from
such decision reads as follows:
"13. The principles applicable in considering applications for setting
aside abatement may thus be summarised as follows:
(i) The words 'sufficient cause for not making the application within
the period of limitation' should be understood and applied in a
reasonable, pragmatic, practical and liberal manner, depending upon
the facts and circumstances of the case, and the type of case. The
words 'sufficient cause' in Section 5 of the Limitation Act should
receive a liberal construction so as to advance substantial justice,
when the delay is not on account of any dilatory tactics, want of bona
fides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are
more liberal with reference to applications for setting aside
abatement, than other cases. While the court will have to keep in view
that a valuable right accrues to the legal representatives of the
deceased respondent when the appeal abates, it will not punish an
appellant with foreclosure of the appeal, for unintended lapses. The
courts tend to set aside abatement and decide the matter on merits,
rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of
delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends
on the nature of application and facts and circumstances of the case.
For example, courts view delays in making applications in a pending
appeal more leniently than delays in the institution of an appeal. The
courts view applications relating to lawyer's lapses more leniently
than applications relating to litigant's lapses. The classic example is
the difference in approach of courts to applications for condonation of
delay in filing an appeal and applications for condonation of delay in
refiling the appeal after rectification of defects.
(v.) Want of 'diligence' or 'inaction' can be attributed to an appellant
only when something required to be done by him, is not done. When
nothing is required to be done, courts do not expect the appellant to
be diligent. Where an appeal is admitted by the High Court and is not
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expected to be listed for final hearing for a few years, an appellant is
not expected to visit the court or his lawyer every few weeks to
ascertain the position nor keep checking whether the contesting
respondent is alive. He merely awaits the call or information from his
counsel about the listing of the appeal."
(emphasis supplied in original)
17. The second circumstance is whether the counsel for the deceased
respondent or the legal representative of the deceased respondent
notified the court about the death and whether the court gave notice of
such death to the appellant. Rule 10-A of Order 22 casts a duty on the
counsel for the respondent to inform the court about the death of such
respondent whenever he comes to know about it. When the death is
reported and recorded in the order-sheet/proceedings and the appellant is
notified, the appellant has knowledge of the death and there is a duty on
the part of the appellant to take steps to bring the legal representative of
the deceased on record, in place of the deceased. The need for diligence
commences from the date of such knowledge. If the appellant pleads
ignorance even after the court notifies him about the death of the
respondent that may be an indication of negligence or want of diligence.
18. The third circumstance is whether there is any material to contradict
the claim of the appellant, if he categorically states that he was unaware of
the death of the respondent. In the absence of any material, the court
would accept his claim that he was not aware of the death.
19. Thus it can safely be concluded that if the following three conditions
exist, the courts will usually condone the delay, and set aside the
abatement (even though the period of delay is considerable and a
valuable right might have accrued to the opposite party--LRs of the
deceased--on account of the abatement):
(i) The respondent had died during the period when the appeal had
been pending without any hearing dates being fixed;
(ii) Neither the counsel for the deceased respondent nor the legal
representatives of the deceased respondent had reported the death
of the respondent to the court and the court has not given notice of
such death to the appellant;
(iii) The appellant avers that he was unaware of the death of the
respondent and there is no material to doubt or contradict his claim.
(emphasis supplied)
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23. We find it difficult to agree with such reasoning. When an
application praying for substitution had been made, then, even
assuming that it does not have an explicit prayer for setting aside the
abatement, such prayer could be read as inherent in the prayer for
substitution in the interest of justice. We draw inspiration for such a
conclusion, having read the decision in Mithailal Dalsangar Singh v.
Annabai Devram Kini, 2003 10 SCC 691. This Court reiterated the
need for a justice-oriented approach in such matters. Inter alia, it was
held that prayer to bring on record heir(s)/legal representative(s) can
also be construed as a prayer for setting aside the abatement. The
relevant passage reads as under:
"8. Inasmuch as the abatement results in denial of hearing on
the merits of the case, the provision of abatement has to be
construed strictly. On the other hand, the prayer for setting aside
an abatement and the dismissal consequent upon an
abatement, have to be considered liberally. A simple prayer for
bringing the legal representatives on record without specifically
praying for setting aside of an abatement may in substance be
construed as a prayer for setting aside the abatement. So also a
prayer for setting aside abatement as regards one of the
plaintiffs can be construed as a prayer for setting aside the
abatement of the suit in its entirety. Abatement of suit for failure
to move an application for bringing the legal representatives on
record within the prescribed period of limitation is automatic and
a specific order dismissing the suit as abated is not called for.
Once the suit has abated as a matter of law, though there may
not have been passed on record a specific order dismissing the
suit as abated, yet the legal representatives proposing to be
brought on record or any other applicant proposing to bring the
legal representatives of the deceased party on record would
seek the setting aside of an abatement. A prayer for bringing the
legal representatives on record, if allowed, would have the effect
of setting aside the abatement as the relief of setting aside
abatement though not asked for in so many words is in effect
being actually asked for and is necessarily implied. Too
technical or pedantic an approach in such cases is not called
for.
9. The courts have to adopt a justice-oriented approach dictated
by the uppermost consideration that ordinarily a litigant ought
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not to be denied an opportunity of having a lis determined on
merits unless he has, by gross negligence, deliberate inaction or
something akin to misconduct, disentitled himself from seeking
the indulgence of the court. The opinion of the trial Judge
allowing a prayer for setting aside abatement and his finding on
the question of availability of 'sufficient cause' within the
meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of
the Limitation Act, 1963 deserves to be given weight, and once
arrived at would not normally be interfered with by superior
jurisdiction.
10. In the present case, such an approach adopted by the
Division Bench verges on too fine a technicality and results in
injustice being done. There was no order in writing passed by
the court dismissing the entire suit as having abated. The suit
has been treated by the Division Bench to have abated in its
entirety by operation of law. For a period of ninety days from the
date of death of any party the suit remains in a state of
suspended animation. And then it abates. The converse would
also logically follow.
Once the prayer made by the legal representatives of the
deceased plaintiff for setting aside the abatement as regards the
deceased plaintiff was allowed, and the legal representatives of
the deceased plaintiff came on record, the constitution of the suit
was rendered good; it revived and the abatement of the suit
would be deemed to have been set aside in its entirety even
though there was no specific prayer made and no specific order
of the court passed in that behalf."
(emphasis supplied)
15. Likewise, in the case of Collector, Land Acquisition,
Anantnag and Anr. Vs. Msr. Katji and Ors. reported in AIR
1987 SC 1353, wherein also it held thus :-
"1. Ordinarily a litigant does not stand to benefit by lodging an
appeal late.
2. Refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice being
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defeated. As against this when delay is condoned the highest that can
happen is that a cause would be decided on merits after hearing the
parties.
3. "Every day's delay must be explained" does not mean that a
pedantic approach should be made. Why not every hour's delay, every
second's delay? The doctrine must be applied in a rational common
sense pragmatic manner.
4. When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of mala fides. A litigant
does not stand to benefit by resorting to delay. In fact he runs a serious
risk.
6. It must be grasped that judiciary is respected not on account of its
power to legalize injustice on technical grounds but because it is
capable of removing injustice and is expected to do so."
(emphasis supplied)
16. When the ratio of the aforesaid decisions applied to the
facts of the present case, undoubtedly the case is made out
by the plaintiff that there is no intentional delay on the part
of the plaintiff to file an application for bringing legal heirs
of defendant No.1 on record of the suit. As plaintiff having
no knowledge about the factum the death of defendant
No.1, the delay occurred in filing application, which requires
to be condoned by the trial Court. Having not exercised
jurisdiction so vested with the trial Court in a manner which
requires to be have been done, this Court though sparingly
exercises its power under Article 227 of the Constitution of
India requires to interfere with the impugned order passed
by the trial Court. It is settled that whenever, any order
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passed by trial Court contrary to settled legal position of
law, to keep the Courts within its bound, High Court should
exercise its supervisory jurisdiction so vested in it under
Article 227 of the Constitution of India. [See : Waryam Singh
v/s Amarnath - AIR 1954 SC 215].
17. Thus, in view of the aforesaid observations, discussions
and reasons, this Court is of the view that the impugned
orders passed by the trial Court is erroneous, perverse and
contrary to the settled principle of law, requires to be
quashed and set aside which is hereby quashed and set aside.
Consequently, delay in filing those applications are hereby
condoned and so also the abatement of suit is hereby
quashed and set aside.
18. Thus, the impugned applications filed below Exh. 47 and
Exh.72 in Regular Civil Suit No. 166 of 1995 are hereby
allowed. Accordingly, legal heirs of deceased defendant No.1
i.e. Respondent No. 1.1 & 1.2 herein are hereby brought on
the record of the Regular Civil Suit No. 166/1985 pending
before Civil Judge, (Junior Division), Padra. The plaintiff shall
carry out necessary amendment in the suit forthwith which
be permitted by trial Court.
19. This Court would not have passed any further order/
direction in the matter but considering the fact that the suit
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was instituted in year 1985, once aforesaid formality of
joining the legal heirs of defendant No.1 will get complete,
the trial Court should expedite the trial of suit. After giving
an opportunity of hearing to all the parties concerned to
lead their respective evidence and then after, decide the lis
between the parties as early as possible preferably on or
before 30th July, 2026.
20. In view of foregoing reasons and conclusion, the
present writ application is hereby allowed to the aforesaid
extent. Rule is made absolute. No order as to cost.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
