Gujarat High Court
Legal Heirs Of Late Shri Pramukhlal ... vs Kunjbihari Madhavrao Bhagwat - Since ... on 19 August, 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
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Reserved On : 11/08/2025
Pronounced On : 19/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18589 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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LEGAL HEIRS OF LATE SHRI PRAMUKHLAL JIVANLAL & ORS.
Versus
KUNJBIHARI MADHAVRAO BHAGWAT - SINCE DECEASED & ORS.
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Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,2,2.1
MR SHAILESH DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 10
MR BJ TRIVEDI(921) for the Respondent(s) No. 6
MR MAHAVIRDAN H RATNU(13822) for the Respondent(s) No. 4
MR NM KAPADIA(394) for the Respondent(s) No. 5
MR YH MOTIRAMANI(3720) for the Respondent(s) No. 13
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 6
RULE SERVED BY DS for the Respondent(s) No. 11,12
RULE UNSERVED for the Respondent(s) No. 9
UNSERVED EXPIRED (R) for the Respondent(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
TABLE OF CONTENTS THE SHORT FACTS OF THE CASE.............................................3 SUBMISSIONS OF THE PETITIONERS - APPLICANTS...................8 SUBMISSION OF THE RESPONDENTS-DEFENDANTS..................13 REJOINDER OF SUBMISSIONS OF THE PETITIONERS................18 POINT FOR DETERMINATION..................................................20 ANALYSIS...............................................................................21 POINT NO.I............................................................................21 POINT NO.II...........................................................................25 CONCLUSION..........................................................................53
1. Heard learned Senior advocate Mr. Dhaval D. Vyas with Page 1 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined learned advocate Mr. D.K.Puj appearing for the petitioners, and learned Senior Advocate Mr.Mihir Joshi with learned advocate Mr.N.M.Kapadiya for respondent No.5, and Learned AGP Mr.Shailesh Desai appearing for respondent no.10, Learned advocate Mr.Brijesh Trivedi for respondent no.6 and learned advocate Mr.Y.H.Motiramani for the respondent no.14 and learned advocate Mr.Mahavirdan H. Ratnu for respondent no.4. Though served, none appears for rest of the respondents.
2. The present writ application is filed under Article 227 of the Constitution of India, seeking the following relief:-
"A. This Hon'ble Court may kindly be pleased to issue a writ of Mandamus or any other writ, order or direction in the nature of Mandamus quashing and setting aside the order passed by the Ld. Senior Civil Judge below an Application exhibit 190 in Regular Civil Suit no.60 of 1983 rejecting the Application filed by the Petitioner for bringing them on record as Plaintiffs being legal heirs / representatives of the Plaintiff no.1.1 to 1.4 and 2.1 respectively and also the order passed below exhibit 1 in Regular Civil Suit no. 60 of 1983.
B. This Hon'ble Court may be further pleased to issue the writ of Mandamus or any other writ, order, direction in the nature Mandamus directing the Ld. Senior Civil Judge to permit the Petitioner to be joined as Plaintiffs in Regular Civil Suit no.60 of 1983 and further be pleased to direct the Ld. Senior Civil Judge to set-aside the abetment and decide the Suit on merit after hearing the Petitioners.Page 2 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined C. During the pendency and final disposal of this Petition, the impugned orders passed by the Ld. Senior Civil Judge on 001.10.2015 be stayed and the Respondents be restrained from dealing with the Suit property in any manner whatsoever.
D. Cost of this Petition as well as the proceedings may kindly be awarded to the Petitioners, in the interest of Justice.
E. Any other and further relief, this Hon'ble Court deems fit, may kindly be granted, in the interest of justice."
3. By way of the present application, the petitioners herein have questioned the legality of the order dated 01.10.2015 passed by the 4th Additional Senior Civil Judge, Ahmedabad (Rural), passed below Exhibit 190 and Exhibit 1 in Regular Civil Suit No. 60 of 1983.
THE SHORT FACTS OF THE CASE
4. The petitioner Nos. 1.1 to 1.4 are the legal heirs of the original plaintiff No. 1, whereas petitioner No. 2.1 is the legal representative of the original plaintiff No.2 of Regular Civil Suit No. 60 of 1983, filed against the respondents herein. 4.1. The suit is filed seeking specific performance of an agreement to sell executed by the father of defendant Nos. 1 to 9 herein, in favour of the original plaintiffs. The suit was Page 3 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined decided on its merits, and vide judgment and decree dated 13.09.1996, the Trial Court dismissed the suit. 4.2. At the relevant point of time, the appeal was required to be filed before this Court, it appears that only original plaintiff No. 2 had filed First Appeal No. 5304 of 1996 before this Court, wherein original plaintiff No. 1 was joined as respondent No. 14.
4.3. It further appears that in view of an amendment in the Gujarat Civil Courts Act, vide order dated 19.07.2005, the Division Bench of this Court transferred the said First Appeal to the District Court concerned. Accordingly, the said appeal was transferred to the District Court, which was renumbered as Regular Civil Appeal No. 27 of 2006.
4.4. The original plaintiff No. 1 died on 05.11.1999. One of his legal heirs, i.e., petitioner No. 1.3 herein, had filed an application below Exhibit 11 in Regular Civil Appeal No. 27 of 2006, whereby he requested the Appellate Court to join him as a legal heir of the deceased plaintiff No. 1 as appellant No. 2, Page 4 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined which was allowed.
4.5. The plain reading of such application would indicate that it was filed by petitioner No. 1.3 to be joined as legal heir of the deceased original plaintiff No. 1. Such application appears to have been filed on 28.06.2006, which came to be allowed by the Appellate Court vide its order dated 06.07.2006. The said order passed by the Appellate Court was never questioned by anyone, including the respondents herein, which attained finality. So, in view of the aforesaid order passed by the Appellate Court, petitioner No. 1.3, being one of the legal heirs of original plaintiff No. 1, was joined as appellant No. 2 in the said appeal.
4.6. After hearing the parties, the Appellate Court, vide its judgment and decree dated 19.06.2012, partly allowed said appeal and thereby remanded the matter back to the Trial Court to decide the suit on its merits. It has been so observed by the Appellate Court that despite answering issue no. 1 to 6 in favour of plaintiffs, Trial Court has given self - Page 5 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined contradictory finding on issue no. 7 & 11. Thus, Appellate Court has permitted parties to the suit to lead their evidence in regards to issue no. 7 & 11. Accordingly, remanded the matter back to the Trial Court.
4.7. After remand of the matter, the suit, though instituted in the year 1983, was restored back to its original file in the year 2012. The impugned application came to be filed below Exhibit 190 by the petitioners herein, claiming to be legal heirs of original plaintiff No. 1 as well as legal representatives of original plaintiff No. 2, respectively. 4.8. It is contended in the impugned application that as the entire suit and appeal proceedings were taken care of by original plaintiff No. 2, who died on 29.05.2014, and as such only petitioner No. 1.3 came to be joined in the appeal proceedings as one of the legal heirs of original plaintiff No. 1, the other legal heirs had no knowledge about the pendency of such appeal. Nonetheless, when they received a phone call from the advocate concerned on 23.07.2015 and on inquiring Page 6 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined about the status of the suit, they came to know about the pendency of the suit.
4.9. So far as petitioner No. 2.1 is concerned, he is holding the Will of the deceased original plaintiff No. 2, wherein, by way of such Will, the right in relation to the suit property is transferred in favour of him.
4.10. In light of the aforesaid facts and circumstances, by way of the impugned application having filed on 30.07.2015, the petitioners have prayed to the Trial Court to set aside the abatement, condone the delay in bringing the legal heirs of the original plaintiffs, and so also, bring the legal heirs of the original plaintiffs on record of the suit. The impugned application is supported by an affidavit, albeit sworn by petitioner No. 2.1, i.e., the legal representative of original plaintiff No. 2.
4.11. It further appears that the death certificate of original plaintiff No. 1 and the registered Will of original plaintiff No. 2 were produced on record along with the impugned Page 7 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined application. Nonetheless, a copy of the death certificate of original plaintiff No. 2 was not submitted along with the impugned application. The defendant No. 5 appears to have opposed the impugned application by his reply filed below Exhibit 194 in the suit.
4.12. After hearing the parties, the Trial Court, vide its order dated 01.10.2015, rejected the impugned application filed below Exhibit 190 in the suit. So, it has not allowed all legal heirs of original plaintiff No. 1 as well as the legal representative of original plaintiff No. 2 to be substituted on record of the suit. Consequently, on the very same day, the Trial Court has disposed of the suit as being abated, having passed an order below Exhibit 1 in the suit.
5. Feeling aggrieved and dissatisfied with the aforesaid, the petitioners have preferred the present writ application. SUBMISSIONS OF THE PETITIONERS - APPLICANTS 5.1. Learned Senior Advocate, Mr. Dhaval D. Vyas, would submit that the impugned orders passed by the Trial Court is Page 8 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined not only erroneous and perverse but passed without properly exercising the jurisdiction so vested in it, thereby Trial Court has committed a serious error of law.
5.2. Learned Senior Advocate, Mr. Vyas, would submit that the Trial Court has manifestly erred in observing that in the absence of any separate application seeking condonation of delay or setting aside the abatement of the suit not being filed by petitioners, as the case may be, the impugned application came to be rejected.
5.3. Learned Senior Advocate, Mr. Vyas, would submit that as per the settled legal position, there is no mandatory requirement under law to file such a separate application, inasmuch as the Court can very well consider the averments made in the application as regards a sufficient cause having been made out which prevented the petitioners from filing such application within the stipulated time. 5.4. Learned Senior Advocate, Mr. Vyas, would further submit that on one hand, the Trial Court having unnoticed the Page 9 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined fact that one of legal heirs of original plaintiff No.1 already on record being substituted in appeal and having reached to the conclusion that in the absence of the death certificate of plaintiff No. 2, his death cannot be believed; then it could not have abated the suit. It is submitted that as one of the legal heirs of plaintiff No. 1 was already brought on record of the appeal, then for all practical purposes, when the matter was remanded back to the Trial Court by the Appellate Court, the Trial Court should have considered one of the legal heirs of plaintiff No. 1 to be brought on the record of the suit itself. It is further submitted that in the absence of a copy of the death certificate of plaintiff No. 2 being available on the record of the suit, the Trial Court could not have presumed that he having died, the suit got abated.
5.5. Learned Senior Advocate, Mr. Vyas, would further submit that the factum of the death of plaintiff No. 2 was as such not in dispute, and in view of the fact that a copy of the death certificate is made available on the record of this present application, being produced at an Annexure G (Page 91), Page 10 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined which is issued by the Ahmedabad Municipal Corporation (AMC), the legal representative of plaintiff No. 2 requires to be brought on record in the interest of justice. 5.6. Learned Senior advocate, Mr. Vyas, would respectfully submit that when one of the legal heirs of original plaintiff No. 1 is already on record, so, no prejudice would have been caused to the defendants if the remaining legal heirs of original plaintiff No. 1 could have been allowed to be brought on record of the suit.
5.7. Learned Senior Advocate, Mr. Vyas, would further submit that plaintiff No. 2, having died on 29.05.2014, had executed a registered Will in favour of petitioner No. 2.1 herein, whereby the interest of plaintiff No. 2 in the suit land was bequeathed in favour of petitioner No. 2.1. In such factual situation on record, petitioner No. 2.1 requires to be considered as a legal representative of original plaintiff No. 2 ought to have been brought on record.
5.8. Learned Senior Advocate, Mr. Vyas, would further Page 11 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined submit that as per the settled legal position, while adjudicating the impugned application, the Trial Court is required to take a liberal view, whereby it aims to deliver justice to the parties especially when no serious prejudice would cause to the defendants as they can still have a right to defend the suit on its merits being remanded back.
5.9. Learned Senior Advocate, Mr. Vyas, would respectfully submit that when there is no mala fide intention on the part of the petitioners and/or any dilatory tactics used by them when they filed the impugned application, impugned application requires to be allowed in the interest of justice. 5.10. To buttress his arguments, learned Senior Advocate, Mr. Vyas, would rely upon the following decisions:-
(i) Rangubai Kom Shankar Jagtap vs. Sunderabai Bharatar Sakharam Jedhe and others reported in AIR 1965 SC 1794 (paras 8 and 9);
(ii) Mithailal Dalsangar Singh and others vs. Annabai Devram Kini and Others reported in (2003) 10 SCC 691;
(iii) Om Prakash Gupta Alias Lalloowa (deceased) vs Satish Chandra (Now Deceased) reported in 2025 SCC Online SC 291 : (2025) INSC 183;
(iv) Mangluram Dewangan vs. Surendra Singh and others Page 12 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined reported in (2011) 12 SCC 773;
(v) Radhaballav Chaubey and others vs. Mahadeve Chaubey and others reported in 1972 SC Online 171 (para 3). SUBMISSION OF THE RESPONDENTS-DEFENDANTS
6. Per Contra, Learned Senior Advocate, Mr. Mihir Joshi, who is appearing for respondent No. 5, has vehemently opposed the present application, contending, inter alia, that there is a gross delay on the part of the petitioners who filed the impugned application, inasmuch as the death of plaintiff No. 1 took place during the pendency of the appeal on 05.11.1999 and plaintiff No. 2 died on 29.05.2014, but the impugned application came to be filed only on 30.07.2015 for substitution of their legal heirs/representative. 6.1. Learned Senior Advocate, Mr. Joshi, would submit that petitioner No. 1.3 herein was not joined as a legal heir of original plaintiff No. 1 in the appeal, but the prayer made in the application filed by him was to the effect that he should be joined in the appeal as appellant No. 2, which was accepted, thereby bringing him on the record of the appeal. It Page 13 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined is respectfully submitted that at that time, the other legal heirs could have approached the Appellate Court by filing an appropriate application, but having not chosen to substitute themselves in the appeal, the impugned application is nothing but a wakeup call from slumber, and in such a situation, the rest of the legal heirs of original plaintiff No. 1 could not have been brought on record, and have been correctly not brought on record by the Trial Court.
6.2. Learned Senior Advocate, Mr. Joshi, would further submit that petitioner No. 2.1 herein, claiming to be the legal representative of the deceased original plaintiff No. 2, a registered Will having been executed in his favour, on the strength of such Will, he could not have been brought on record of the suit, inasmuch as there is also no sufficient cause made out by him while filing the impugned application. Nonetheless, under the instruction of his client, learned Senior Advocate Mr. Joshi would request that if this Court is inclined to entertain and allow the present application, the right of the defendants to question any right accrued in favour of petitioner Page 14 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined No. 2.1 on the strength of the alleged registered Will of plaintiff No. 2 in his favour and his entitlement to receive any benefit on the strength of such Will in the suit be kept open in favour of the defendants as at this stage, defendants are not inviting any reasons from this Court on such issue. 6.3. Learned Senior Advocate, Mr. Joshi, would further submit that when the legal heirs of original plaintiff No. 1, so also original plaintiff No. 2, were not brought on record within the statutory period of limitation, the suit got abated automatically and as such there was no formal expression of the Court requires on it. It is submitted that when a prayer made for setting aside the abatement is refused under Order 22, Rule 9 of the Civil Procedure Code, 1908 (hereinafter referred to as 'the CPC') by the Trial Court, having rejected the impugned application, there is an alternative statutory appeal remedy under Order 43, Rule 1(k) of the CPC available to the petitioners.
6.4. Learned Senior Advocate, Mr. Joshi, would respectfully Page 15 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined submit that when there is a statutory alternative remedy available to the petitioners to file an appeal from the order against the impugned order passed by the Trial Court, this Court cannot and should not entertain the writ application being filed under Article 227 of the Constitution of India. It is submitted that merely because this Court, vide its order dated 03.11.2015, has admitted this writ application and so also granted interim relief in favour of the petitioners, it would not be a ground not to relegate the petitioners to the alternative remedy.
6.5. Learned Senior Advocate, Mr. Joshi, would further submit that the affidavit which was submitted in support of the impugned application was sworn only by the alleged legal representative of original plaintiff No. 2 i.e. Petitioner No. 2.1 herein, and there is no independent affidavit filed by the legal heirs of original plaintiff No. 1 in support of the impugned application. It is submitted that in this view of the matter, the impugned application was otherwise not to be entertained, which was correctly not entertained by the Trial Court. Page 16 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined 6.6. Learned Senior Advocate, Mr. Joshi, would respectfully submit that the petitioners herein have neither made out any sufficient cause nor disclosed any justifiable reasons in the impugned application from which it can be inferred that there was a bona fide delay on their part in not filing the impugned application at the given point of time. It is submitted that the suit was very old, and having considered the inherent lacunae on the part of the petitioners when the filed the impugned application, the Trial Court has correctly not exercised jurisdiction and discretion in their favour, thus rejecting the impugned application.
6.7. To buttress his argument, Learned Senior Advocate, Mr. Joshi, would rely upon the decision in the case of Mohamed Ali vs. V. Jaya and Others reported in (2022) 10 SCC 477.
7. Learned advocates appearing for the other respondents have adopted the arguments advanced by learned Senior Advocate Mr. Joshi and requested this Court to reject the Page 17 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined present writ application.
REJOINDER OF SUBMISSIONS OF THE PETITIONERS
8. Learned Senior Advocate, Mr. Vyas, would submit that when this Court, at the first instance, admitted the present writ application in the year 2015, considering the peculiar facts and circumstances of the case and the nature of the impugned order, this Court may not relegate the petitioners to an alternative remedy. It is submitted that substantial time has also passed by now, and considering the nature of the impugned application and the order passed thereon, it would not be appropriate to relegate the petitioners to an alternative remedy.
8.1. Learned Senior Advocate, Mr. Vyas, would further submit that as per the decision of the Hon'ble Supreme Court in the case of Om Prakash Gupta (supra), there is no need to file any separate application for setting aside abatement and so also a delay application, and in that view of the matter, the impugned application having prayed for bringing the legal Page 18 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined heirs of the original plaintiffs on record of the suit by further praying for condonation of delay and setting aside the abatement of the suit, the impugned order passed by the Trial Court would not be considered as an order only passed under Order 22, Rule 9 of the CPC.
8.2. It is respectfully submitted that considering the nature of the relief as sought in the impugned application, the appropriate relief available under law would be to file the present writ application under Article 227 of the Constitution of India, which has already been undertaken by the petitioners. 8.3. Learned Senior Advocate, Mr. Vyas, would further submit that the right to sue survived in favour of the petitioners, being the legal heirs and legal representatives of the original plaintiffs, as the case may be, and when one of the legal heirs of plaintiff No. 1 was already brought on record and available when impugned order passed, no serious prejudice would be caused to the defendants if the other legal heirs and representatives of plaintiffs were allowed to be Page 19 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined brought on record of the suit.
8.4. Learned Senior Advocate, Mr. Vyas, would further submit that once the impugned order passed below Exhibit 190 is quashed and set aside by this Court, the order passed below Exhibit 1, which would be a consequential order, would not stand in the eye of the law and is required to be set aside. 8.5. Making the above submissions, learned Advocate Mr. Vyas would request this Court to allow the present application.
9. No other and further submissions are made by any of the parties.
POINT FOR DETERMINATION (I) Whether, in the facts and circumstances of the case, the order impugned in present writ application an appealable order under Order 43 Rule 1(k) of CPC or not?
(II) Whether, in the facts and circumstances of the case, is there any gross irregularity, illegality, and/or Page 20 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined any jurisdictional error committed by the Trial Court while passing the impugned orders, when rejected the impugned application?
ANALYSIS POINT NO.I
10. Learned Senior Advocate, Mr. Joshi, has vehemently opposed the maintainability of the present writ application, inasmuch as, according to him, when the Trial Court has not set aside the abatement, having rejected the impugned application, such an order was an appealable one by way of an appeal from order under Order 43, Rule 1(k) of the CPC. At the first blush, the argument looks attractive, but on deep scrutiny, requires rejection.
11. At the outset, it is required to be observed that though a detailed affidavit-in-reply was filed by only respondent No. 5 herein (defendant No.5), opposing the present writ application, I nowhere found that defendant No. 5 raised such a plea about an alternative remedy available to the petitioners to file an Page 21 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined appeal under Order 43, Rule 1(k) of the CPC. Such a plea for the first time was pressed into service during the course of the argument of learned Senior Advocate Mr. Joshi. In light of the aforesaid facts and circumstances of the case narrated herein above, and when this Court not only admitted the present application at the first instance, vide its order dated 03.11.2015, but also granted an interim stay, and so also due to the following reasons, such a plea is not entertained by this Court:-
11.1. It remains undisputed that the impugned application, filed below Exhibit 190, having a prayer to allow the petitioners to be brought on record of the suit, being the legal heirs/legal representatives of the original plaintiffs respectively.
As there was a delay in filing such application and there was an abatement, thus requested to condone such delay and also sought for set aside abatement. Such composite request made by the petitioners in the impugned application filed before the Trial Court, whereby they requested to allow the impugned application.
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NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined 11.2. If such an application would have been allowed by the Trial Court, then, as per the ratio laid down in the case of Om Prakash Gupta (supra), (relevant portion of it quoted in later part of this judgement), the Trial Court would deemed to have condoned the delay and so also set aside the abatement, irrespective of not having made any such separate prayers to that effect in the impugned application.
11.3. As a matter of record, in the case on hand also, there is no such separate prayer made by the petitioners requesting the Trial Court to set aside the abatement. In that view of the matter, it be gainsaid that the impugned application was filed only under Order 22, Rule 9 of the CPC and not under Order 22, Rule 3 of the CPC.
11.4. According to my view, considering the nature of the application and the request made by the petitioners while submitting the impugned application, it would not be correct to say that the impugned application could only be treated and stricto sensu filed under Order 22, Rule 9 of the CPC. Page 23 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined 11.5. Having arrived at the aforesaid conclusion, when the impugned application cannot be treated as having been only filed under Order 22, Rule 9 of the CPC, the question of relegating the petitioners to the Appellate Court, having a statutory alternative remedy to file an appeal under Order 43, Rule 1(k) of the CPC against refusal of setting aside abatement, would not arise. It is even not appropriate in light of the facts and circumstance of this case to adopt such recourse. 11.6. Moreover, considering the peculiar facts and circumstances of the case, when the suit is of the year 1983 and this Court having already admitted the matter at the first instance when filed in the year 2015, while issuing rule and granting interim relief in favour of the petitioners, and in view of the aforesaid conclusion, I am of the view that an appeal from order under Order 43, Rule 1(k) of the CPC would not be an effective alternative remedy available to the petitioners to question legality of the impugned order passed by the Trial Court.
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NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined 11.7. Thus, the decision of the Hon'ble Supreme Court of India in the case of Mohamed Ali (Supra), relied upon by learned Senior Advocate Mr. Joshi, would not be helpful to him. Point No.I answered accordingly.
POINT NO.II
12. Before adverting to the issue germane in the matter and answered it, first of all, I would like to refer few decisions of Hon'ble Supreme Court of India which would have bearing on the issue germane in the matter.
13. First in a row, in the case of Om Prakash Gupta (supra), wherein Hon'ble Supreme Court of India held thus:-
"23. We find it difficult to agree with such reasoning. When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice. We draw inspiration for such a conclusion, having read the decision in Mithailal Dalsangar Singh v. Annabai Devram Kini, 2003 10 SCC 691. This Court reiterated the need for a justice-oriented approach in such matters. Inter alia, it was held that prayer to bring on record heir(s)/legal representative(s) can also be construed as a prayer for setting aside the abatement. The relevant passage reads as under:
"8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the Page 25 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.
9. 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 the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.
10. In the present case, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done............."
(emphasis supplied) Page 26 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined
14. It would also be apt to place reliance upon a decision of the Hon'ble Supreme Court delivered as far as back in the year, 2010, in the case of Bhagmal and Others vs. Kunwar Lal and others, reported in (2010) 12 SCC 159, wherein it was held thus:-
"12. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellant-defendants had clearly pleaded that they did not earlier come to the court on account of the fact that they did not know about the order passed by the court proceeding ex parte and also the ex parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellant-defendants for making Order 9 Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant-defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hyper technical view that no separate application was filed under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice................ "
(emphasis supplied) 14.1. Even in near past also, on 20th December 2024, the Page 27 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined Hon'ble Supreme Court again reiterated the aforesaid principle, in case of Dwarika Prasad (D), Thr. Lrs. vs. Prithviraj Singh reported in 2024 SCC OnLine SC 3828, arising out of Special Leave Petition (C) No. 11259 of 2022, wherein paras 9, 11, and 12, held thus:-
"9. We have heard learned counsel for the appellant and perused the record. We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The Trial Court had rightly allowed the restoration application filed by the Appellant under Order IX Rule 13 of CPC. It is well settled that Courts should not shut out cases on mere technicalities but rather afford opportunity to both sides and thrash out the matter on merits. Further, we cannot let the party suffer due to negligent or fault committed by their counsel. This principle has been enunciated by this court in the case of Rafiq v. Munshilal1, quoted as follows:
"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put Page 28 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order....."
11. The Appellant has relied upon the following judgments in support of his submissions. In Bhagmal v. Kunwar Lal this Court held as follows;
"12. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellant-defendants had clearly pleaded that they did not earlier come to the court on account of the fact that they did not know about the order passed by the court proceeding ex parte and also the ex parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellant-defendants for making Order 9 Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant-defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons Page 29 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined for the delay also. Under such circumstances, the High Court should not have taken the hypertechnical view that no separate application was filed under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice."
12. From the above cases, it is clear that there was no need to file a separate application for condonation of delay in the present case as well. The High Court has erred in taking a hyper technical view and concluding that there was violation of mandatory provision of law. Endorsing such a view would effectively mean ignoring the purpose of judicial procedure. The procedure cannot stand in the way of achieving just and fair outcome. In the present case, the Appellant acted bona fide and diligently. His conduct does not violate any rule of law."
(emphasis supplied)
15. It is also apposite to refer and rely upon the decision of the Hon'ble Supreme Court in the case of a decision in case of Banwarilal vs. Balbir Singh reported in (2016) 1 SCC 607, wherein, it has been held thus:-
"8. Since no steps were taken to bring on record the legal representatives of late Banwari Lal either in the first appeal or in the second appeal, the appellants have filed CM No. 1998 of 2012 (under Order 1 Rule 10 CPC read with Section 151 CPC) to implead (i) Shakuntala; (ii) Gaurav; (iii) Rachna; and (iv) Manju. Civil Procedure Code Order 22 stipulates the manner in which the legal representatives of the plaintiffs or the defendants ought to be brought on record. The prescribed procedure cannot be circumvented by filing application under Order 1 Rule 10 CPC read with Section 151 CPC. However, in our view, it would be unjust to non-suit the appellants on the ground of technicalities.Page 30 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined
9. Provisions of Order 22 CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta [(2003) 3 SCC 272] , a five-Judge Bench of this Court held as under : (SCC pp. 300-01, para 26) "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court [Amarjit Singh v. Pramod Gupta, 1991 SCC OnLine Del 131 : (1991) 20 DRJ 337] should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the Page 31 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice."
(emphasis supplied)
10. In Sital Prasad Saxena v. Union of India [(1985) 1 SCC 163] , it was observed that the rules of procedure under Order 22 CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order [Banwari Lal v. Balbir Singh, 2013 SCC OnLine Del 6406] cannot be sustained."
(emphasis supplied)
16. At this stage, it would also be apposite to refer and rely upon pertinent observations made by the Hon'ble Supreme Court of India in the case of Bhagvathy Devaswom v. Bhargavi Amma [(2008) 8 SCC 321], which is also referred to in the case of Om Prakash Gupta (Supra), read thus:-
"13. The principles applicable in considering applications for setting aside abatement may thus be summarised as follows:
(i) The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, Page 32 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses.
The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v.) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."
(emphasis supplied in original) (emphasis supplied)
17. Last but not least, a full bench decision of Hon'ble Supreme Court of India Sangram Singh versus Election Page 33 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined Tribunal Kotah reported in AIR 1955 (SC) 425 wherein held thus:-
"[16] Now a code of procedure must be regarded as such. It is 'procedure', something, designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.
[17] Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.
(emphasis supplied)
17. So, time and again, it is reminded by Hon'ble Supreme Court in its various decisions so also in clear terms stated by the Constitution Bench of Hon'ble Supreme Court in a case of Sardar Amarjit Singh Kalra (supra) that provision of Order 22 of CPC is not a rigid matter of procedure but flexible tool in the administration of justice. Having so observed that such Page 34 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined provision is neither penal in nature not punish erring party but are designed for advancement of justice. Such legal aspect needs to be remembered by the Trial Court when adjudicate an application filed under Order 22 of CPC.
18. The Hon'ble Supreme Court has reminded all courts that while adjudicating an application, be it filed seeking condonation of delay or setting aside of abatement, a broad, justice-oriented approach is required to be adopted by the court, whereby, having condoned such delay and set aside the abatement, the legal heirs of a deceased litigant are brought on record of the proceeding so they can pursue their legal right to sue which has survived in their favour, and ultimately the Trial Court can decide lis on its merits.
19. Keeping the above referred decisions and also keeping in mind ratio of aforesaid decisions, I would like to decide the main issue germane in the matter.
20. Now, adverting back to the issue germane in the matter, the facts, which are observed hereinabove, are not in dispute.Page 35 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined The suit came to be filed by two individuals who died one after another during the pendency of the appeal and the suit, respectively. It remains undisputed that original plaintiff No. 1 having died on 05.11.1999, one of his legal heirs, i.e., petitioner No. 1.3 herein, was brought before the Appellate Court in the Regular Civil Appeal No. 27 of 2006 filed by original plaintiff No. 2. The application so filed by petitioner No. 1.3 below Exhibit 11 in Regular Civil Appeal No. 27 of 2006 would clearly indicate that he wanted to be joined as a legal heir of original plaintiff No. 1, who was joined as respondent No. 14 in the appeal. The proposed amendment sought for in the appeal by way of filing the aforesaid application would also indicate such fact. Even the prayer Clause i.e., para 5(A) of such application would also confirm that petitioner No. 1.3 herein requested the Appellate Court to allow him to join as appellant No. 2, being a legal heir of original plaintiff No. 1. Further, cause-title of judgement/decree dated 19.06.2012 passed by Appellate Court would also suggest that petitioner No.1.3 herein described as Appellant No.2 -Page 36 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined child of original plaintiff No.1. In view of said, there is no substance in the argument of learned senior advocate Mr. Joshi that petitioner No. 1.3 was not joined as legal heirs of original plaintiff No.1 but joined in his individual capacity.
21. Once such application came to be allowed by the Appellate Court vide its order dated 06.07.2006, petitioner No. 1.3 was brought on the record of the said appeal and, as the case may be, of the suit. This aspect of the case was completely lost sight by Trial Court when adjudicated impugned application.
22. Such issue is no longer remained res integra, having already been decided by the Hon'ble Supreme Court of India in the case of Rangubai (Supra), wherein it held thus:-
"8. It is said that the final decree proceeding is a stage in the suit and the appeal is another stage in the suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enure for all stages of the suit including the appeal. This conclusion, the argument proceeds, flows from the reasoning of the judgment of the Judicial Committee in Brij Indar Singh v. Kanshi Ram [(1917) LR 44 IA 218, 228] . The relevant facts of that case were these : Pending a suit an application was made for directing a party to produce certain books and that was ordered by the District Judge. Thereafter an application was made to the Chief Court to revise the order of the District Judge. Pending the revision the plaintiff and the 2nd defendant died. Within the prescribed time their legal representatives were brought on record Page 37 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined in the revision. Subsequently that revision was dismissed as withdrawn. The legal representatives of the plaintiff and the 2nd defendant were not brought on record in the suit within the time prescribed. The question was whether the suit had abated. The Judicial Committee held that the suit did not abate and the following reasons were given for that view:
"The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, and the prayer, which seems to have been made ab majorem cautelam, by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of no effect. Coates, the judgment debtor, was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit."
This judgment is an authority for the position that if the legal representatives of a deceased plaintiff or defendant are brought on record in an appeal or revision from an order made in the suit, that would enure for all subsequent stages of the suit. The same principle was sought to be extended in a Madras decision to a cross appeal : see Shankaranaraina Saralaya v. Laxmi Hengsu [AIR 1931 Mad 277, 278] , There, two appeals were independently filed against the decree in a suit -- one was filed by the plaintiff and the other by the defendant. The plaintiff-appellant died and in the appeal filed by him his legal representatives were brought on record in time, whereas it was not so done in the appeal filed by the defendant-respondent. It was argued that by reason of the fact that the legal representatives of the plaintiff were brought on record in the appeal filed by him there was no abatement in the appeal filed by the defendant. The Court negatived the contention and when the aforesaid decision of the Privy Council was cited, it was distinguished on the following grounds:
"Their Lordships have held that the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages. When the subject-matter of the interlocutory application was pending in the appellate court it was deemed to be one stage of the suit and therefore there was no need to put in a fresh application at a further stage of the suit when it came on Page 38 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined for trial before the first Court. Can it be said in the present case that what was done in one appeal could enure for the benefit of another appeal unless the latter appeal can be deemed to be a continuation or a further stage of the appeal in which the legal representatives were brought on record? I am constrained to say that it is difficult to extend the principle of the decision of the Privy Council to the facts of this case."
This decision accepts the principle laid down by the Privy Council but distinguishes the case before it on the ground that the interlocutory appeal is not a continuation or a further stage of the appeal in which the legal representatives were brought on record. Many other decisions were cited at the Bar, but they only support the position that in bringing the legal representatives of a deceased party on record in one appeal will not enure for the benefit of a cross appeal.
9. Let us now consider the question on principle. A combined reading of Order XXII, Rules 3, 4 and 11, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. In the application of the said Rules 3 and 4 to an appeal, instead of "plaintiff" and "defendant", "appellant" and "respondent" have to be read in those rules. Prima facie, therefore, if a respondent dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under Rule 4, read with Rule 11, of Order XXII of the Code of Civil Procedure. But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (1) A filed a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein. The defendant died and his legal representatives were brought on record. The suit was subsequently remanded to the trial court. The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the Page 39 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the trial court's order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. Whether the appellate order confirms that of the first Court, modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate court at one stage and the orders made therein were made in the suit itself. Therefore, that order enures for the subsequent stages of the suit."
(emphasis supplied)
23. At this stage, it is also apt to rely upon the decision of Hon'ble Supreme Court in the case of Mithailal Dalsangar Singh (Supra), wherein it has been held thus:
"11.There is yet another aspect of the matter. As we have already noticed, the appeal against the order of ad interim injunction passed by the learned trial Judge was pending before the Division Bench. Therein the defendants had themselves moved an application for bringing on record the legal representatives of the deceased plaintiff, that is, the respondent in their appeal. The legal representatives being brought on record at any stage of the proceedings enures for the benefit of the entire proceedings. The prayer made by the defendants in their appeal for bringing on record the legal representatives of the deceased plaintiff- respondent in appeal was not opposed by the legal representatives or by any of the co-plaintiffs. Rather the prayer was virtually conceded to by the legal representatives themselves moving an application for being brought on record in the suit in place of the deceased plaintiff. In our opinion, the application made by the defendant-appellants in the appeal once allowed would have Page 40 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined the effect of bringing the legal representatives on record, not only in the appeal but also in the suit. All that would remain to be done is the ministerial act of correcting the index of the parties by the applicants in appeal and then in the suit. In view of the defendants themselves having sought for impleadment of the legal representatives in the appeal the delay in moving the application in the suit by the legal representatives, being subsequent in point of time, became meaningless."
(emphasis supplied)
24. When one of the legal heirs of plaintiff No. 1 was brought on record of the appeal, and at the relevant point of time, none of the defendants had objected to such substitution of legal heirs of original plaintiff No. 1 on record, such substitution of legal heirs on record in the appeal would enure to the further stages of the suit, when the matter was remanded back to the Trial Court.
25. As discussed herein above, this legal aspect has been completely lost sight of by the Trial Court when it adjudicated the impugned application filed below Exhibit 190. If one of legal heirs of original plaintiff No.1 was already on record of the suit, by no stretch of imagination, Trial Court could have observed that "Record itself suggest that son of plaintiff No.1 was party in the appeal, despite this fact, he has not made Page 41 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined any application in this suit. Such big lacuna or negligence cannot be ignored." This itself suggests that impugned order is erroneous, perverse and contrary to settled principle of law.
26. Likewise, the Trial Court has erroneously observed that no separate applications seeking condonation of delay and so also praying for setting aside of the abatement of the suit being filed, which according to Trial Court, sine qua none to entertain the impugned application. This appears to be fallacy in law requires outright rejection.
27. It is now a well-settled legal position that in a case like the present one, when any application seeking substitution of legal heirs of a deceased litigant is filed without filing a separate delay application and or application seeking setting aside abatement, the Trial Court should not have rejected the application seeking substitution of legal heirs of the deceased litigant. Such a hyper-technical approach of the Court that in the absence of separate delay/setting aside abatement applications, such application cannot be entertained is not only Page 42 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined criticized but not approved by the Hon'ble Apex Court.
28. Thus, in view of the aforesaid authoritative pronouncement of law by the Hon'ble Supreme Court in its number of decisions, having so applied to the issue germane in the present writ application, when the petitioners have already requested the Trial Court to consider their request to bring them on record of the suit as legal heirs/legal representatives of the original plaintiffs, along with seeking condonation of delay and setting aside of the abatement of the suit, the Trial Court taking very hyper technical approached not accepted such request, committed a jurisdictional error. According to this Court, it egregiously erred in law by observing that there is no separate delay application, so also no application seeking setting aside of the abatement, filed by the petitioners having found them negligent. True, there is some lapses on the part of petitioners having not filed impugned application in time but is it too fatal that they should not be allowed to bring on record of the suit? According to me, answer is empathetic No. Page 43 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined
29. The Trial Court has also taken too technical an approach while rejecting the impugned application by observing that there is a delay of 16 years in filing such application by the legal heirs of the deceased original plaintiff No. 1. The Trial Court appears to have lost sight of one crucial fact as observed and discussed herein above that one of the legal representatives of plaintiff No. 1 was already substituted in the suit itself, as having been brought in the aforesaid regular civil appeal. When one of the legal representatives of plaintiff No. 1 was already available on the record of the suit, if the other legal heirs of original plaintiff No. 1 requested the Trial Court to allow them to join in the suit, there was no reason, much less any cogent and convincing reason, for the Trial Court not to accept such a request citing 16 years delay.
30. Likewise, the Trial Court has also observed that in the absence of the death certificate of plaintiff No. 2, it cannot be presumed that plaintiff No. 2 died. The Trial Court could have directed applicants to submit a copy of death certificate of Page 44 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined plaintiff No.2 on record especially when there is no serious dispute about death of plaintiff No.2 raised by defendants. Nonetheless, having so produced such death certificate of plaintiff No.2 on record of this writ application and its authenticity is not in dispute, without being too technical, this Court would consider it and allow applicants to cure such defect which otherwise curable. At the same time, when this Court inclined to accept prayers of the applicants, when during course of his submissions, Learned Senior Advocate Mr. Joshi requested this Court to keep the issue left open to be decided by Trial Court in regards to any right accrued in favour of petitioner No. 2.1 on the strength of the alleged registered Will of plaintiff No. 2 in his favour and his entitlement to receive any benefit on the strength of such Will in the suit. So, in view of such request, the aforesaid issue is left open to be decided by Trial Court while adjudicating the suit on merit. It is open for respective parties to raise their respective submission in this regard which shall be decided by Trial Court in accordance with law.
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31. Having considered the ratio of the above referred decisions of the Hon'ble Supreme Court that the Court should consider a liberal approach while adjudicating such type of application seeking either condonation of delay or setting aside the abatement of the suit, in the absence of any mala fide or any gross negligence on the part of the applicants-petitioners in not filing the impugned application in time, according to my view, such an impugned application requires to be allowed, whereby the petitioners are required to be brought on record of the suit.
32. The Trial Court appears to have completely lost sight such settled legal position of law laid down by the Hon'ble Supreme Court of India while adjudicating the impugned application.
33. It is true that when petitioner No. 1.3 was substituted himself on the record of the appeal and the suit, the other legal representatives of plaintiff No. 1 could have been brought on record. At the same time, they are not having been brought on record at the given point of time would not be so fatal, Page 46 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined and in no case, it would not cause any prejudice to the interest of the defendants if the other legal heirs of plaintiff No. 1 are now allowed to be brought on record of the suit. It is so mentioned in the impugned application that the appeal and the suit proceedings were looked after by original plaintiff No. 2, and in that view of the matter, all legal representatives of plaintiff No. 1 if want to come on record, there is no harm if such request would have been allowed by Trial Court by exercised its discretion in favour of applicants. As such according to my view, applicants made out sufficient cause when filed impugned application thereby, Trial Court could have condoned delay, set aside abatement and accordingly, substituted petitioners on record of the suit being legal heirs/representative of original plaintiffs. If such recourse would have been adopted, it would in consonance with principle of substantial justice rather defeat it by rejecting impugned application.
34. It is further averred in the application that after the sad demise of original plaintiff No. 2 on 29.05.2014, when they Page 47 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined received a phone call from the office of the advocate engaged by the original plaintiffs on 23.07.2015, having contacted the lawyer immediately thereafter, they filed the impugned application on 30.07.2015. It is true that such application was supported by the affidavit of only petitioner No. 2.1, but considering the fact that the rule of procedure is the handmaid of justice, and in that view of the matter, when said fact set out/mentioned in impugned application having common fact for both which can be culled out by reading the impugned application, which would constitute sufficient cause taking liberal approach in the matter, thus in that view of the matter, this Court would not like to entertain such a hyper-technical plea that in absence of separate affidavit of legal heirs of plaintiff No.1, impugned application could not have been entertained.
35. More so, after going through the reply filed by defendant No. 5 below Exhibit 194 before the Trial Court, which was made available by the learned advocate for respondent No. 5 to this Court, it would not indicate that such an objection was Page 48 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined even raised before the Trial Court. So, in that view of the matter, having raised such an objection for first time before this Court would not entitled the defendants to convince this Court not to entertain the present application.
36. Thus, such an objection raised by the defendants/respondents that the legal heirs of original plaintiff No. 1 were also required to file a separate affidavit and having not done so while filing impugned application, would be an inherent incurable defect, requires rejection.
37. At last, it is also required to be observed that during the course of arguments, learned Senior Advocate Mr. Joshi would not in a position to show any serious prejudice would cause to the respondents-defendants if the impugned application came to be allowed. Nonetheless, his entire thrust of arguments revolved around procedural lapses and so also peripheral around technicalities which otherwise either curable one and/or not sustainable in law. Thus, none of his submissions impressed this Court.
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38. As observed hereinabove, while narrating facts of the case, in the first round, though suit was dismissed by Trial Court but issue Nos. 1 to 6 were answered in favour of plaintiffs and whereas issue Nos.7 to 10 are answered in negative against defendants but surprisingly, the Trial Court did not grant relief in favour of original plaintiffs by answering issue No.11 against plaintiffs. So, in that view of the matter, the Appellate Court had remanded the matter back to the Trial Court to re-decide issue Nos.7 and 11 afresh, permitting the parties to lead their evidence to prove such issues. The issue No.7 appears to be an issue with regard to non-joinder of necessary party and issue No.11 regards to entitlement of plaintiffs to get relief as prayed in the suit. Thus, if applicants would not allow to be brought on record of the suit, rather it causes serious prejudice to their interest inasmuch as original plaintiffs during their life time, already led evidence in the suit and now, the scope of adjudication of suit is only confined to the aforesaid issues. In light of aforesaid, according to this Court, there would not be any serious prejudice caused to the defendants if the impugned Page 50 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined application be allowed rather it definitely causes serious prejudice to the interest of petitioners / applicants.
39. According to my view, while adjudicating such type of application, the endeavour should always be made by the Trial Court thereby, the legal heirs/representatives of the deceased litigant can be brought on record and ultimately the lis between the parties be decided on its merits rather than being defeated on technicalities which is antithesis to justice oriented approach. If the case is made out thereby opposite side shows any mala fide intention, dilatory tactics used, gross negligence of applicant while filing such type of application and or any serious prejudice caused to other side, in all other cases, to advance justice to the party, such type of application needs to be allowed by Trial Court by positively exercised its discretion. None of such reasons brought to the notice of this Court by defendants.
40. Accordingly, I am in complete agreement with submissions so made by learned senior advocate Mr. Vyas appearing for the Page 51 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined petitioners.
41. Once impugned order passed below Exhibit 190 requires to be quashed, as a consequence, impugned order passed below Exhibit 1 would not survived, also requires to be quashed. For which, considering peculiar facts and circumstance of this case, keeping in mind the fact that suit is of year 1983, this Court would not like to relegate petitioners to challenge impugned order passed below Exhibit 1 by separate appeal. Such recourse would not only increase the burden of Appellate Court but not a correct recourse to be adopted, at least by this Court.
42. In view of foregoing reasons, this Court is of the view that impugned order suffers from jurisdictional error and approach of the Trial Court is just opposite to what is settled position of law. Thus, it requires to be interfered by this Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India. It needs to quash the impugned order as its by now well settled that in a case of jurisdictional error committed by Trial Court and so also to keep the Court within its bound, such power vested with this Court requires to be Page 52 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined exercised for ends of justice. [ See - Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)]
43. When this Court has reached to the aforesaid conclusion, the impugned order dated 01.10.2015 passed by the Trial Court below Exhibit 190 in Regular Civil Suit No. 60 of 1983 requires to be interfered with by this Court, a fortiori, the impugned order passed below Exhibit 1 in the suit requires to be interfered as well by this Court. Point No.II is answered accordingly.
CONCLUSION
44. In view of aforesaid reasons and considering above peculiar facts and circumstance of the present case, the impugned order dated 01.10.2015 passed by the Trial Court below Exhibit 190 in Regular Civil Suit No. 60 of 1983 is not an appealable order under Order 43 Rule 1 (k) of CPC as impugned application is not considered strict sensu filed only under Order 22 Rule 9 of CPC.
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44.2. According to my view, when reached to the aforesaid conclusion, having found the impugned orders erroneous, perverse, and contrary to the settled legal position, the impugned orders require to be interfered with by this Court while exercising its power under Article 227 of the Constitution of India. As such and for reasons assigned herein above, case made out by applicants thereby, impugned application could not have been rejected by Trial Court.
44.3. Thus, having so observed and concluded hereinabove, the impugned order dated 01.10.2015 passed by the 4 th Additional Senior Civil Judge, Ahmedabad (Rural), below Exhibit 190 in Regular Civil Suit No. 60 of 1983 is hereby Page 54 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025 NEUTRAL CITATION C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025 undefined quashed and set aside. Consequently, the application filed below Exhibit 190 is hereby allowed, whereby the petitioners- applicants herein are directed to be brought on record of aforesaid Regular Civil Suit No. 60 of 1983 as all the legal heirs of original plaintiff No. 1 and the legal representative of original plaintiff No. 2, respectively.
44.4. As a sequel, the impugned order dated 01.10.2015 passed below Exhibit 1 in Regular Civil Suit No. 60 of 1983 by the 4th Additional Senior Civil Judge, Ahmedabad (Rural), is also required to be quashed and set aside, which is hereby quashed and set aside. Accordingly, aforesaid Regular Civil Suit No. 60 of 1983 is restored back on its original file. 44.5. In view of the foregoing conclusion, the present writ application is hereby allowed. Rule is made absolute accordingly. No order as to costs. The Civil Application would not survive and accordingly, disposed of. 44.6. The Trial Court should expedite the aforesaid suit as instituted in year 1983. All concern should extend their co- Page 55 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
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Sd/-
(MAULIK J.SHELAT,J) Page 56 of 56 Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025