SCA/15032/2004 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15032 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= ASHOK NANJIBHAI GAJERA & 2 - Petitioner(s) Versus NANDUBEN DAHYABHAI WD/O DAHYABHAI RAMBHAI & 1 - Respondent(s) ========================================================= Appearance : MR JV MEHTA for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.3.1, 1.3.2, 1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 - 3. None for Respondent(s) : 1 - 2. MR PP KASVALA for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8,1.2.9 - 2,2.2.2 NOTICE SERVED for Respondent(s) : 1.2.6 - 2. RULE SERVED for Respondent(s) : 1.2.10 ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/03/2008 ORAL JUDGMENT In the petition, the petitioners have challenged the judgment and order dated 17th March 2004 passed by the learned Joint District Judge, Fast Track Court, Amreli in Regular Civil Appeal No.55/02. 2. It appears that the said appeal was filed by one Dayabhai Rambhai through his power of attorney, his son Ratilal Dayabhai. There is no dispute that the appellant Dayabhai expired in the year 2000. Unfortunately, however, no steps were taken to bring SCA/15032/2004 2/3 JUDGMENT his heirs on record. Ordinarily, therefore, the appeal should have been disposed of as abated. The District Court, however, unmindful of death of Dayabhai proceeded to hear the appeal and in fact allowed the same in favour of the appellant. The petitioners, have therefore, filed this petition challenging the said judgment passed by the Appellate Court. 3. Only on the ground that Dayabhai expired in the year 2000, it was not open for the Appellate Court to allow his appeal without his heirs being brought on record, I am inclined to accept this petition. Learned advocate for the respondents, however, submitted that Ratilal is already on record as Power of Attorney holder of Dayabhai and therefore, the appeal could not have been treated as having abated. Ratilal Dayabhai, who only presented appeal for and on behalf of Dayabhai as his attorney. His presence therefore was limited to acting as an agent of Dayabhai. 4. Under the circumstances, I find that the appellate order could not have been passed in view of the sole appellant having expired and heirs not having been brought on record. The impugned order is therefore required to be set aside. However, it would be open for the heirs of deceased Dayabhai to apply to the District Court for being brought on record by explaining delay in filing such an application. It may be noted that the judgment was SCA/15032/2004 3/3 JUDGMENT passed in appeal in the year 2004 and thereafter proceedings have been pending before this Court. Question of filing of such an application since the year 2004 therefore had not arisen. If the heirs of deceased Dayabhai therefore file an application for condonation of delay and also explain the delay in bringing themselves on record, the District Court shall consider the same bearing in mind the decisions of several courts suggesting that such delay should be liberally condoned unless prejudice is caused to the other side and also consider whether on some condition such application can be granted. 4. Subject to the above observations, the petition is allowed. The impugned judgment and order is quashed. Rule is made absolute accordingly. If ultimately, the heirs are brought on record, the appeal shall be heard afresh on merits and disposed of in accordance with law. (Akil Kureshi, J.) (vjn)