SCA/17450/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 17450 of 2006 With CIVIL APPLICATION No. 1 of 2007 In SPECIAL CIVIL APPLICATION No. 17450 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= ATIYABHAI KARNABHAI VADHIYA - Petitioner(s) Versus SAVJIBHAI MALDEBHAI GORAD - Respondent(s) ========================================================= Appearance : MR PF ADHVARYU for Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 NOTICE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/12/2008 ORAL JUDGMENT 1. Though served nobody appears on behalf of the respondent. SCA/17450/2006 2/5 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioners – original plaintiffs have prayed for appropriate writ, order and/or directions quashing and setting aside the impugned order dtd.14/7/2006 passed by the learned 4th Additional Senior Civil Judge, Junagadh below application Ex.132 in Regular Civil Suit No. 236 of 2002, by which the learned trial court has dismissed the application Ex.132 submitted by the petitioners to bring them on record as heirs of defendant No.10. 3. In Regular Civil Suit No.236 of 2002 filed by the respondents herein – original plaintiffs, father of the petitioners was joined as defendant No.10 who expired on 19/5/2003. That thereafter, the petitioners, as heirs of deceased Labhuben Dayabhai Gorad – defendant No.10, submitted application Ex.132 in July, 2006 for bringing them on record as heirs of deceased Labhuben – original defendant No.10. However, the learned trial court dismissed the said application by holding that neither there is any application to condone the delay, nor there is any prayer to set aside the abatement and consequently the petitioners are not permitted to be brought on record as the heirs of the defendant No.10. Being aggrieved by SCA/17450/2006 3/5 JUDGMENT the impugned order dtd.14/7/2006 passed by the learned 4th Additional Senior Civil Judge, Junagadh below application Ex.132 in Regular Civil Suit No.236 of 2002, the petitioners – heirs of original defendant No.10 have preferred present Special Civil Application under Article 227 of the Constitution of India. 4. As stated above, though served nobody appears on behalf of the original plaintiffs. 5. Having heard Mr.Adhvaryu, learned advocate appearing on behalf of the petitioners and considering the impugned order passed by the trial court, it appears that the trial court has taken too technical view in dismissing the said application and in not permitting the petitioners to be brought on record as heirs of original defendant No.10. It appears that the learned trial court has dismissed the said application only on the ground that there is no prayer of the petitioners to condone the delay in preferring the application for bringing the heirs on record and there is no prayer to set aside the abatement. 6. As held by the Hon'ble Supreme Court in the case of K.Rudrappa Vs. Shjivappa reported in (2004) 12 SCC 253, while considering the application under Order XXII Rule 9 and 3, Court should not take hypertechnical view SCA/17450/2006 4/5 JUDGMENT in rejecting such application on the ground that no prayer for setting aside the abatement of appeal and for condonation of delay had been filed. It is further observed by the Hon'ble Supreme Court that such technical objections should not come in the way of doing full and complete justice between the parties. 7. As held by the Hon'ble Supreme Court In the case of Mithailal Dalsangar Singh and other Vs. Annabai Devram Kini and others, reported in (2003) 10 SCC 691, prayer for setting aside the abatement and the dismissal consequent upon an abatement have to be considered liberally and the courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought 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 a indulgence of the Court. 8. In view of the above two decisions of the Hon'ble Supreme Court, present Special Civil Application deserves to be allowed and the impugned order dtd. 14/7/2006 passed by the learned 4th Additional Senior Civil Judge, Junagadh below application Ex.132 in Regular Civil Suit SCA/17450/2006 5/5 JUDGMENT No.236 of 2002 deserves to be quash and set aside by permitting the petitioners to be brought on record as heirs of original defendant No.10 in the aforesaid Civil Suit. 9. For the reasons stated above, the petition succeeds. The impugned order dtd.14/7/2006 passed by the learned 4th Additional Senior Civil Judge, Junagadh below application Ex.132 in Regular Civil Suit No.236 of 2002 is hereby quashed and set aside and the application Ex.132 is hereby allowed and the petitioners are permitted to be brought on record as heirs of original defendant No.10. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. 10.In view of allowing the main Special Civil Application, no orders in Civil Application No.1724 of 2007. [M.R. SHAH, J.] rafik