SCA/8607/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8607 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DAHYABHAI MULJIBHAI DETROJA DECEASED THROUGH LEGAL HEIRS & 2 - Petitioner(s) Versus GUJARAT ELECTRICITY BOARD - Respondent(s) ========================================================= Appearance : MR CHETAN P PANDYA for Petitioner(s) : 1 - 3.MR PRANAV M RAVAL for Petitioner(s) : 1 - 3. NOTICE SERVED for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR GIRISH D BHATT for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 17/09/2008 ORAL JUDGMENT 1. RULE. Learned advocate Mr GD Bhatt waives service of Rule on behalf of the respondent. SCA/8607/2008 2/4 JUDGMENT 2. Heard the learned advocates appearing for the parties for final disposal of the petition. 3. The petitioners have challenged an order dated 02.05.2008 passed by the learned Additional Senior Civil Judge, Junagadh below applications Exhs.35 and 36 filed by the original plaintiff – present respondent. 4. The respondent – Gujarat Electricity Board has instituted a Special Civil Suit No.33 of 2002. The suit was filed against one Dahyabhai Muljibhai Detroja, father of the present petitioners. Said Shri Dahyabhai expired on 21.01.2004. A purshis was filed on behalf of his heirs at Exh.18 on 08.03.2004 declaring that the said defendant has expired. On 24.08.2006, for the first time, the plaintiff filed an application Exh.31 requesting for bringing the legal heirs of the deceased – defendant on record and also prayed for condonation of delay in moving such an application. Apparently, on an objection by the heirs of the deceased – defendant, that such a combination application is not maintainable, the plaintiff filed applications Exhs.35 and 36 both on 31.08.2006. In the application Exh.35, the plaintiff sought delay condonation and in application Exh.36, the plaintiff prayed for SCA/8607/2008 3/4 JUDGMENT setting aside of abatement of the suit. Both these applications were granted and legal heirs of the deceased - defendant brought on record. 5. Learned advocate Mr Raval for the petitioners submitted that despite due notice, there was gross delay on the part of the plaintiff for bringing legal heirs of the deceased – defendant on record. He further submitted that in any case, there was no prayer for bringing the petitioners on record and the Trial Court, therefore, could not have granted such a prayer. 6. Learned advocate Mr GD Bhatt appearing for the respondent – original plaintiff submitted that the delay was well explained. The Trial Court, therefore, committed no error in condoning the delay and setting aside the abatement. 7. Having heard the learned advocates appearing for the parties, I find that though the delay was explained in terms of the inability of the advocate of the plaintiff to pursue the application for bringing legal heirs on record, nevertheless the Trial Court should have awarded the cost while allowing the application of the plaintiff. 8. Though the learned advocate for the petitioners is correct in pointing out in the final prayer clause that there is no specific prayer for SCA/8607/2008 4/4 JUDGMENT showing the legal heirs of the deceased – defendant on record, the application read as a whole would make it clear that the original plaintiff had given full details of the legal heirs and had also urged that they may be brought on record. Therefore, a minor technical error in not specifically making such a prayer in the final prayer clause would not permit me to interfere with the order in exercise of writ jurisdiction, particularly, when it is pointed out that all the sons of deceased – defendant have already brought on record even before his death. 9. Considering all these aspects of the matter, however, impugned order is not disturbed, it is directed that the respondent shall pay a cost of Rs.5,000/- (Rupees five thousand only) to the petitioners. 10. With the above direction, the petition is disposed of. Rule is discharged. (Akil Kureshi, J.) mrpandya*