SCA/5813/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5813 of 2008 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? ========================================================= HEIRS & L.R.OF DECEASED HABIBUNNISA D/O KAMUMIYA & 3 - Petitioner(s) Versus AMINABIBI WD/O MOHAMADKHAN RAHIMKHAN PATHAN & 7 - Respondent(s) ========================================================= Appearance : MR AB MUNSHI for Petitioner(s) : 1 - 4. None for Respondent(s) : 1 - 4. MR NIKHIL S KARIEL for Respondent(s) : 1.2.1, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 - 2, 2.2.2,2.2.3 - 3, 3.2.2,3.2.3 - 4, 4.2.2, 4.2.3, 4.2.5, 4.2.7,4.2.8 - 7. RULE SERVED for Respondent(s) : 1.2.2, 4.2.4,4.2.6 - for Respondent(s) : 0.0.0 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/10/2008 ORAL JUDGMENT 1. Rule. Mr.Nikhil Kariel, learned Advocate SCA/5813/2008 2/4 JUDGMENT waives service of notice of Rule on behalf of respondent Nos.1.2.1,1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 - 2, 2.2.2,2.2.3 - 3, 3.2.2,3.2.3 - 4, 4.2.2, 4.2.3, 4.2.5, 4.2.7,4.2.8 – 7. Though served nobody appears for rest of the respondents. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners – heirs and legal representatives of deceased – original plaintiff have prayed for an appropriate order to quash and set aside the order dated 21.02.2008 passed by the learned Additional Civil Judge, Borsad below application – Exh.79 in Regular Civil Suit No.243 of 1981 whereby the learned Trial Court has rejected the application – Exh.79 qua defendant No.1 i.e. not permitting the plaintiff to bring heirs and legal representatives of original defendant No.1 on record and thereby passing order to abate the suit qua defendant No.1. SCA/5813/2008 3/4 JUDGMENT 3. It appears from the proceedings and the impugned order that vide application - Exh.79 plaintiff submitted application to bring heirs and legal representatives of deceased original defendant Nos.1 to 4. However, the learned trial Court allowed the said application qua bringing heirs and legal representatives of deceased defendant Nos.2 to 4 on record. However, did not grant said application qua bringing heirs of deceased defendant No.1 on record. It appears from the impugned order that main reason rejecting the said application is that the application has been submitted after a period of 14 years after the death of defendant No.1. However, looking to the facts and circumstances when the Suit has not proceeded further and when the learned trial Court has permitted the plaintiff to bring heirs and legal representatives of deceased defendant Nos.2 to 4 on record, on the same ground the learned trial Court ought to have permitted the plaintiff to bring heirs and legal representatives of deceased defendant No.1 on record and ought not to have passed the order abating the Suit qua defendant No.1. Under the circumstances, impugned order passed by the learned SCA/5813/2008 4/4 JUDGMENT trial Court deserves to be quashed and set aside on imposing reasonable costs upon the plaintiff. 4. For the reasons stated above, the petition succeeds. Impugned order dated 21.02.2008 passed by the learned Additional Civil Judge, Borsad below application – Exh.79 in Regular Civil Suit No.243 of 1981 insofar as not permitting the original plaintiff to bring heirs and legal representatives of defendant No.1 on record is hereby quashed and set aside and consequently order of abatement qua defendant no.1 is set aside. Application Exh.79 is fully allowed on condition that the plaintiff shall pay costs to heirs of deceased original defendant No.1 which is quantified at Rs.3000/- (Rupees Three Thousand only), which the plaintiff shall pay within a period of 4(four) weeks from today. If said amount is not paid, impugned order passed by the learned trial Court shall stand. Rule is made absolute to the aforesaid extent. Direct service is permitted. [M.R.Shah,J.] satish