Gujarat High Court
Mandar (Thaltej) Complex Private ... vs Gohel Punjabhai Sodabhai on 1 May, 2025
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C/SCA/12645/2023 JUDGMENT DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12645 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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MANDAR (THALTEJ) COMPLEX PRIVATE LIMITED
Versus
GOHEL PUNJABHAI SODABHAI & ORS.
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Appearance:
MR AS VAKIL(962) for the Petitioner(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1
MS NIKITA C GANDHI(11570) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/05/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Chinmay
M. Gandhi waives service of notice of rule on behalf of
respondent No.1. Though served, none present for respondent
Nos. 2 and 3. However, their presence is not required for
adjudication of present petition.
2. This petition is filed under Article 227 of the Constitution of
India challenging the order dated 16.02.2023 passed by the
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appellate court in Miscellaneous Civil Appeal No. 4 of 2023,
whereby the appellate court allowed applications filed by
Respondent No. 1, including:
a) Application under Exh. 30 for condonation of delay of
more than 12 years and 10 months,
b) Application under Exh. 35 for bringing legal heirs on
record, and
c) Application under Exh. 44 for setting aside the
abatement of Regular Civil Suit No. 22 of 2005.
3. Brief facts leading to the present petition are as follows :
3.1 The petitioner is the original Defendant No. 1 in Regular
Civil Suit No. 22 of 2005 filed by one Sajanben Dhanjibhai
Patel through her Power of Attorney holder, Surabhi
Bhulabhai.
3.2 The original plaintiff - Sajanben passed away on
25.05.2008. Since her legal heirs were not brought on record,
the suit got abated.
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3.3 Respondent No. 1, claiming to be the husband of the
deceased plaintiff, filed applications i.e. to bring himself on
record as her legal heir, to set aside the abatement, and to
condone the delay in filing the such applications.
3.4 These applications were rejected by the Trial Court on
11.01.2023. However, in appeal, the appellate court allowed
the same on 16.02.2023 without assigning sufficient reasons
regarding the delay or satisfaction on the issue of sufficient
cause.
4. Submissions of petitioner :
4.1 Learned counsel Mr. A. S Vakil, appearing for the
petitioner would submit that, the appellate court has
committed a serious error of law by allowing the appeal
without recording a finding that sufficient cause was shown for
the condonation of delay or justification for setting aside the
abatement, thereby committed jurisdictional error while
allowing the appeal.
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4.2 Learned counsel Mr. Vakil would further submit that, the
appellate Court was confused about the fact that which party
is speaking the truth. The observations made by the appellate
Court are suggesting the fact that without verifying such
aspects of the matter, appellate Court has erroneously allowed
the appeal.
4.3 Learned counsel Mr. Vakil would further submit that, there
was a gross delay in filing impugned applications and in a case
where there is no satisfactory explanation coming forth from
the side of respondent No.1 in respective applications,
appellate Court could not have interfered with order passed by
the trial Court.
4.4 So, under the instructions of his client, learned advocate
Mr. Vakil would request this Court to remand back the matter
to the appellate Court to re-decide and re-adjudicate the
appeal afresh. Thus, learned counsel Mr. Vakil would request
this Court to allow the present writ application.
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5. Submission of respondent No.1.
5.1 Learned counsel Mr. Chinmay M. Gandhi, appearing for
Respondent No. 1, while supporting the order passed by the
appellate court, fairly submitted that certain observations made
in the order impugned in petition therein may have led to
some confusion. Upon instructions from his client, he has no
objection to the matter being remanded for fresh adjudication.
5.2 Learned counsel Mr. Gandhi would request this Court that
in view of the aforesaid facts, if this Court remands the matter
back to the appellate Court, rights and contentions of the
respondent No.1 may be kept open to be decided by the
appellate Court in appeal.
5.3 Making above submission, learned counsel Mr. Gandhi
would request this Court to pass appropriate order.
No other and further submissions are made.
6. Analysis :
6.1 After hearing learned counsel for the respective parties and
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after going through the impugned order, it appears that
appellate Court has without recording findings and / or
satisfaction to the effect that sufficient cause is made out by
respondent No.1 - original appellant in aforesaid applications
so filed by him for seeking condonation of delay / setting aside
abatement of suit, appeal came to be allowed. Such recourse
would not be permissible in law in as much as Appellate Court
was required to arrive at specific finding that sufficient cause
made out by respondent No.1-Appellant while filing aforesaid
applications to bring legal heirs of deceased plaintiff on record
and so also setting aside abatement of the suit. In absence of
any such finding, Appellate Court could not have allowed the
appeal.
6.2 The relevant observation made by the appellate Court while
allowing the appeal requires to be taken note by this Court
which reads as under:
"7. That being the position, even though the arguments of
both the Ld. Advocates appears to be right in their
respective contexts, yet, this Court cannot loss sight of the
fact that the courts are meant for doing substantial justice
between the parties and the short question involved herein
is qua setting aside the abetment and Regular Civil Suit
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No. 22 of 2005 by allowing the applications for condoning
delay of 12 years and 10 months in bringing legal heirs of
late Sajjanben on record as well as allowing him to
continue with the Regular Civil Suit No. 22 of 2005. So
far this short question is concerned, on the basis of
documents produced and averments made in applications
at Exhibit:30, Exhibit:35 and Exhibit:44, it is not possible
to adjudicate as to which of the parties is speaking truth ,
hence, this Court is of the considered opinion that the
appellant-originally applicant shall be given an opportunity
to agitate his claim on merit.
8. Even after this Court is of the observation that the
appellant-originally applicant is required to be given an
opportunity to contest Regular Civil Suit No. 22 of 2005
on merits, yet, this Court cannot loss sight of the
inordinate and unexplained delay which cannot he
believed as rightly observer by Ld. Trial Court. This Court
is of the considered opinion that interest of justice will be
best served if a cost is imposed upon the appellant-
originally applicant. In following order ensues: these
circumstances."
7. Conclusion :
7.1 In light of the above aspect of the matter, and now, the
learned counsel appearing for both the parties are consensus ad
idem to remand the matter back to Appellate Court for
rehearing of the appeal afresh, this Court finds it appropriate
to quash and set aside the impugned order dated 16.02.2023
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and remand Miscellaneous Civil Appeal No. 4 of 2023 to the
appellate court for its fresh decision.
7.2 As this court has inclined to accept the request made by
the respective parties of remanding the matter back, appellate
court is hereby requested to decide such appeal after giving
opportunity of hearing to all concerned and on its own merits
without being influenced by any of its earlier order and order
passed by this court.
7.3 As the proceedings are pending since long, if the parties
will extend their cooperation for hearing, appellate court is
hereby requested to adjudicate appeal at the earliest,
preferably on or before 30th August 2025.
7.4 It is made clear that this court has neither gone into nor
examined the merits of the matter which may be decided by
the appellate court afresh.
7.5 In view of the aforesaid observations and reasons, the
impugned order dated 16.02.2023 passed in Miscellaneous Civil
Appeal No. 4 of 2023 is hereby quashed and set aside. The
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Miscellaneous Civil Appeal No. 4 of 2023 is restored back on
its original file. The present petition is allowed to the aforesaid
extent. Rule is made absolute accordingly. There shall be no
order as to cost.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
