Gujarat High Court

Bhanuben Hirabhai Patel And D/O ... vs Lh Of Late Rajnikant Zinabhai on 11 August, 2025

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                             C/SCA/11125/2025                                   ORDER DATED: 11/08/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 11125 of 2025

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                        BHANUBEN HIRABHAI PATEL AND D/O ZINABHAI SAKALCHAND PATEL
                                                  & ANR.
                                                  Versus
                                   LH OF LATE RAJNIKANT ZINABHAI & ORS.
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                      Appearance:
                      CHINTAN U PATEL(7879) for the Petitioner(s) No. 1,2
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                        Date : 11/08/2025

                                                         ORAL ORDER

1. Heard learned advocate Mr.Harshardray Dave with

learned advocate Mr.Chintan U. Patel for the petitioners.

2. The present application is filed under Article 227 of the

Constitution of India, seeking the following relief:-

"a) This Hon'ble Court be pleased to admit this petition.

b) This Hon'ble Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the order below Exh. 32 dated 25th June 2025 passed by the Ld. District Court, Ahmedabad in Civil Suit Number 172 of 2019 Produced at Annexure A and declare the same to be null and void;

c) Pending the admission and final disposal of the petition this Hon'ble Court be pleased to stay the proceedings in Civil Suit number 172 of 2019 pending before Ld. District Court, Ahmedabad;

d) This Hon'ble Court be pleased to grant ad-interim relief in terms of para-c).

e) To pass such other and further orders as are necessary in the interest of justice."

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3. By way of this application, the legal heirs of the original

defendant No. 1, who have challenged the order dated 25-06-

2025 passed by the Trial Court whereby the impugned delay

application filed below Exhibit 32 in Special Civil Suit No. 172

of 2019, by the original plaintiff came to be allowed, thereby

condone the delay in filing an application to bring on record

the legal heirs of the deceased defendant No. 1.

3.1. It appears that plaintiffs No. 1/1, 1/2 to 1/4 happen to

be the daughter-in-law and grandchildren of the deceased

defendant No. 1, respectively.

3.2. It further appears that during the pendency of the suit,

defendant No. 1 died on 23.12.2021. The impugned application

came to be filed by the plaintiffs on 16.09.2022, seeking

condonation of delay of 114 days in filing the application.

Such application was opposed by the legal heirs of the

deceased defendant No. 1 - the petitioners herein, who happen

to be daughters of the deceased defendant No. 1.

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3.3. After hearing the parties, the Trial Court, vide its

impugned order dated 25.06.2025, has allowed the delay

condonation application.

4. Feeling aggrieved and dissatisfied with the impugned

order, the present application is filed.

5. SUBMISSIONS OF THE PETITIONERS, THE LEGAL HEIRS

5.1. Learned advocate Mr. Harshadray Dave would submit

that there is no cause made out, much less any sufficient cause

made out by the plaintiffs while filing the impugned delay

application, and in the absence of sufficient cause, the

impugned application could not have been allowed by the Trial

Court.

5.2. Learned advocate Mr. Dave would submit that the

plaintiffs and defendant No. 1 are not only close relatives,

being the daughter-in-law and grandchildren vis-a-vis their

mother-in-law and grandmother, but are also living together in

one roof.

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5.3. It is submitted that when the plaintiffs were well

aware of the death of the deceased defendant No. 1, who was

residing with them, it was incumbent upon the plaintiffs to file

an application under Order 22, Rule 4 of the Civil Procedure

Code, 1908 (hereinafter referred to as 'the CPC'), within the

statutory period, and having not done so, in the absence of

any sufficient cause, the delay could not have been condoned.

5.4. Learned advocate Mr. Dave would submit that the

Trial Court, without appreciating the aforesaid aspect of the

matter and overlooking the reply/objection of the petitioners,

in an arbitrary manner, allowed the impugned application,

which resulted into miscarriage of justice.

5.5. It is submitted that merely because the learned

advocate of the deceased defendant No. 1 has not informed the

factum of death of defendant No. 1 either to the Court or to

the learned advocate for the plaintiffs, it would not ipso facto

absolve the plaintiffs of their duty to bring the legal heirs of

defendant No. 1 on the record of the suit within the stipulated

time.

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5.6. Learned advocate Mr. Dave would further submit that

as such, there is no cogent and sufficient reason stated by the

plaintiffs by filing the impugned application, inasmuch as in

other suit proceedings instituted by the deceased defendant No.

1 against the plaintiffs, wherein the legal heirs of the deceased

defendant No. 1 being plaintiffs have already been brought on

record, which was within their knowledge.

5.7. It is submitted that in light of the peculiar facts and

circumstances of the case, even though the delay of only 114

days happened in filing an application to bring the legal heirs

on record of the deceased defendant No. 1, it could not have

been allowed by the Trial Court; thereby, it has committed a

jurisdictional error which requires to be corrected by this Court

while exercising its power under Article 227 of the Constitution

of India.

5.8. Learned advocate Mr. Dave would rely upon the

decision of the Hon'ble Supreme Court in the case Karati

Suryanarayana and Others vs. Koppisetti Subba Rao and others

reported in (2009) 11 SCC 183.

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6. At the outset, it is required to be observed that the facts

which are narrated hereinabove are not in dispute.

7. It is true that the plaintiffs must have had knowledge

about the death of defendant No. 1, who happened to be the

mother-in-law and grandmother of the respective plaintiffs.

8. Nonetheless, it is gainsay that the plaintiffs would have

been advised by the lawyer concerned to bring them on the

record of the suit as such death was not known to lawyer of

plaintiff being not informed on record by pleader of defendant

No.1. Further, it does not seem that the trial of the suit had

already commenced when the factum of death came to the

knowledge of the plaintiffs could have been communicated to

their lawyer and got legal advice for future course of action.

9. Furthermore, as per Order 22, Rule 10A of the CPC, it

was also the duty of the pleader of the deceased defendant No.

1 to inform the Court of the factum of the death of his client

and or to inform the lawyer for the plaintiffs, whereby the

lawyer for the plaintiffs could have advised them to take

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necessary action in the matter, and in that situation, an

application could have been filed by the plaintiffs.

10. It also remains undisputed that defendant No. 1 died on

23.12.2021, which was during the COVID-19 period and until

30th June 2022, as per the order passed by the Hon'ble

Supreme Court of India, the period of limitation for filing

necessary applications/any legal proceedings was suspended.

The Court can very well appreciated the predicament of parties

during such COVID-19 period.

11. Be that as it may, in an era of COVID-19 situation where

the death of one of the litigants took place and there is some

inaction on the part of the plaintiffs in not bringing on record

the legal heirs of the deceased defendant, it would not be so

fatal that, in a given case, the Trial Court has exercised its

positive discretion upon realizing that there is no mala fide

intention on the part of the plaintiffs in not bringing on record

the legal heirs of the deceased defendant No. 1. Such a

positive discretionary order passed by the Trial Court could not

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be interfered with by this Court while exercising its power

under Article 227 of the Constitution of India.

11.1. It would be apposite to refer to and rely upon the

decision of the Hon'ble Supreme Court in the case of Sheo Raj

Singh(D) Tr.Lrs.. vs Union Of India reported in (2023) 10 SCC

531 held thus:-

"33. Be that as it may, it is important to bear in mind that we are not hearing an application for condonation of delay but sitting in appeal over a discretionary order of the High Court granting the prayer for condonation of delay. In the case of the former, whether to condone or not would be the only question whereas in the latter, whether there has been proper exercise of discretion in favour of grant of the prayer for condonation would be the question. Law is fairly well- settled that "a court of appeal should not ordinarily interfere with the discretion exercised by the courts below".

If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v. Tammanasa, 2003 10 SCC 390. which in turn relied on the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 2 SCC

593. where it has been held that "an appellate power interferes not when the order appealed is not right but only when it is clearly wrong".

41. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure

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unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."

(emphasis supplied)

12. It is also apt to refer and rely upon the decision of the Hon'ble Supreme Court in the case of Balakrishnan Vs. M. Krishnamurti reported in (1998) 7 SCC 123, 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 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."

(Emphasis supplied)

13. 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

Prakash Gupta (supra), wherein held as under:

"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:

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"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 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) (emphasis supplied)

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14. So far as the decision of the Hon'ble Supreme Court cited

by learned advocate Mr. Dave is concerned, it would not be

applicable to the facts of the case, inasmuch as the Hon'ble

Supreme Court has only observed that irrespective of the

provisions of Order 22, Rule 10A of the CPC, it would be the

duty of the plaintiffs to bring the legal heirs of the deceased

defendant on record, and if there is any delay in filing such an

application, the plaintiffs are required to file a delay

condonation application.

15. There is no cavil on this point that whenever there is a

delay in filing an application like the present one, it is open

for the plaintiffs to file a delay application to bring the legal

heirs on record.

16. Nonetheless, the facts remain that when there is no

intimation made by the pleader for defendant No. 1 either to

the Court or to the lawyer for the plaintiff, the legal heirs of

defendant No. 1 cannot find fault with the delay application

being filed in an application to bring them on record of the

suit.

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17. It would also be apposite to refer to and rely upon the

recent past decision of Hon'ble Supreme Court in the case of

Binod Pathak & Ors Versus Shankar Choudhary & Ors, reported

in 2025 SCC OnLine SC 1411, clarifying such an aspect of the

matter and held thus:-

"60. Rule 10A of Order XXII, as inserted by the Amendment Act, 1976 imposes an obligation on the pleader appearing for the party to intimate death of his client to the court. But there is difference of opinion as to whether the duty imposed on the pleader is confined to factum of death of a party or also to furnish names and particulars of legal representatives.

61. According to one view, there is no obligation on the pleader appearing on behalf of the deceased party to furnish or supply list of legal representatives of the deceased.

62. According to the other view, however, the pleader has not only to inform the court as to death of the party but he must also furnish particulars of legal representatives.

63. However, we are of the view that providing merely an information with regard to the fact of death is not sufficient compliance of the Rule 10A of the CPC. unless and until the counsel furnishes the information with regard to the details of the persons on whom and against whom the right to sue survives and the information under Rule 10A of the CPC. and the object behind it would remain incomplete as the parties would still be labouring to inquire who are the legal representatives and find out as to upon whom and against whom the right to sue survives.

64. This Court in Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (Dead) by Lrs., (2008) 8 SCC 321 has explained the principles applicable in considering applications for setting aside the abatement and as summarised such principles as under:--

"12. In State of M.P. v. S.S. Akolkar [(1996) 2 SCC 568] this Court held : (SCC pp. 569-70, paras 6-7) "6. [...] Under Order 22 Rule 10-A, it is the duty of the counsel, on coming to know of the death of a party, to inform it to the court and the court shall give notice to the other party of the death. By necessary implication

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delay for substitution of legal representatives begins to run from the date of knowledge. [...]

7. It is settled law that the consideration for condonation of delay under Section 5 of the Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. The court always liberally considers the latter, though in some case, the court may refuse to condone the delay under Section 5 in filing the appeals. After the appeal has been filed and is pending, the Government is not expected to keep watch whether the contesting respondent is alive or has passed away. After the matter was brought to the notice of the counsel for the State, steps were taken even thereafter; after due verification belated application came to be filed. It is true that Section 5 of the Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective."

(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.

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(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 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)

65. The High Court in its impugned judgment and order has with a great air of conviction observed that Order XXII Rule 10A of the CPC is not mandatory and would not override the mandatory provisions relating to abatement as contained in Order XXII Rule 4 of the CPC. We are afraid, the understanding of the High Court is not correct.

66. The legislative intention of casting a burden on the advocate of a party to give intimation of the death of the party represented by him and for this limited purpose to introduce a deeming fiction of the contract being kept subsisting between the advocate and the deceased party was that the other party may not be taken unaware at the time of hearing of the appeal by springing surprise on it that the respondent is dead and appeal has abated. In order to avoid procedural justice scoring a march over substantial justice the Rule 10A was introduced by the Code of Civil Procedure (Amendment) Act of 1976 which came into force on February 1st, 1977. Unfortunately, the High Court took no notice of the wholesome provision and fell back on the earlier legal position which automatically stands modified by the new provision and reached an unsustainable conclusion.

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71. This Court observed that although the arguments were attractive, yet one must keep in mind Order XXII Rule 10-A of the CPC This Court observed that it is obligatory on the pleader of the deceased to inform the court and the other side about the factum of the death of a party. This Court observed thus:--

"4. Though the arguments are attractive one must also keep in mind Order 22 Rule 10 of the Code of Civil Procedure. It is obligatory on the pleader of a deceased to inform the court and the other side about the factum of death of a party. In this case we find that no intimation was given to the court or to the other side that the first respondent had died. On the contrary a counsel appeared on behalf of the deceased person and argued the matter. It is clear that the attempt was to see whether a favourable order could be obtained. It is clear that the intention was that if the order went against them, then thereafter this would be made a ground for having that order set aside. This is in effect an attempt to take not just the other side but also the court for a ride. These sort of tactics must not be permitted to prevail. We, therefore, see no reason to interfere. The appeal stands dismissed. There will be no order as to costs."

(emphasis supplied)

18. Thus, in light of the aforesaid peculiar facts and

circumstances, I am satisfied that there is no arbitrariness on

the part of the Trial Court while allowing the impugned

application, inasmuch as the reasons which are assigned by the

Trial Court are neither erroneous, perverse, nor contrary to the

settled legal position of law; this Court would not like to

interfere with such discretionary order passed by the Trial

Court while exercising its supervisory jurisdiction so vested in

it under Article 227 of the Constitution of India. [See Sameer

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