Gujarat High Court
Khodabhai Halabhai Parmar vs Gujarat Revenue Tribunal on 11 March, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria, Ashokkumar C. Joshi
C/LPA/1170/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1170 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 19351 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 1170 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
KHODABHAI HALABHAI PARMAR
Versus
GUJARAT REVENUE TRIBUNAL & 4 other(s)
==========================================================
Appearance:
MR VIMAL A PUROHIT(5049) for the Appellant(s) No. 1
MR. AAKASH CHHAYA, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 3.1,3.1.1,3.1.2,3.1.3
NOTICE SERVED(4) for the Respondent(s) No. 1,2
SERVED BY PUBLICATION IN NEWS(75) for the Respondent(s) No.
3,3.1.4,3.1.5,4,5
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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C/LPA/1170/2017 JUDGMENT
Date : 11/03/2020
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Draft amendment dated 5.3.2020 tendered today, is granted. The same may be carried out at the earliest.
2. This Letters Patent Appeal under clause 15 of the Letters Patent, is directed against order dated 15.6.2017 passed by the learned Single Judge rejecting Special Civil Application No.19351 of 2016. What was prayed by the petitioner in that petition was to set aside order dated 5.2.2013 passed by Gujarat Revenue Tribunal, dismissing Restoration Application being TEN/DA/13/2012 filed by the petitioner. The Tribunal has dismissed petitioner's Revision Application No. 84 of 1990 by its order dated 7th August, 2006, as having abated, against which order the aforementioned restoration application was filed.
3. Noticing the attendant facts, land bearing Survey No. 1078 situated in district Gandhinagar belonged to one Dabhi Fateji Raviji, which land was subjected to proceedings under the Tenancy Laws. One Nathuji Madhuji who was also the legal heir, came to be considered to be the general tenant, however the said tenant Page 2 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT subsequently failed to purchase the land as per Section 32-P of the Bombay Tenancy Act, 1948. The original owner Fataji Revaji died in the year 1971, succession entry was mutated in the revenue records and name of Bai Elba Dabhi and the said Nathuji Madhuji were entered.
3.1 While the above was the background in a nutshell, it is to be stated that the land in question came to be sold to Mafatsinh Nathuji by way of registered Sale deed dated 6.12.1973. Mutation Entry was certified for this transaction. Thereafter, said Mafatsinh sold the land to the present petitioner- Parmar Khodabhai Halabhai by way of registered sale deed dated 6.12.1976 to result into mutation of entry on 22.3.1977.
3.2 The Mamlatdar & Agricultural Lands Tribunal started proceedings initiating Tenancy Case No. 1620 of 1980 for breach of conditions, on the ground that the sale transaction had taken place unauthorisedly as it was without prior permission of the authority. The Mamlatdar passed order dated 19.5.1981 forfeiting the land in question to the government. The petitioner preferred Appeal against the aforesaid before the Prant Officer in the year 1986, which came to be rejected on 3.8.1987. Thereafter, the Revision Page 3 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT Application was filed before the Gujarat Revenue Tribunal. The Tribunal rejected the Revision on 7.8.2006.
3.3 While rejecting the Revision Application, the Tribunal rested on the ground that the petitioner had not brought on record the legal heirs of opponent Nos. 2.1 to 2.3-the respondent Nos. 2.1.1 to 2.1.3 herein within 90 days from the date of their death. The petitioner-appellant thereupon filed Restoration Application No. 13 of 2012 before the Gujarat Revenue Tribunal, which was rejected by the Tribunal to become the order which was impugned in the Special Civil Application.
3.4 Dismissing the writ petition, learned Single Judge took the view that no case was made out to interfere in exercise of the suvervisory jurisdiction under Article 227 of the Constitution. It was observed that the proceedings of the year 1990 came to an end in the year 2006, and that due to failure on part of the petitioner in bringing the legal heirs on record, the proceedings stood abated. In para 5 of the order, learned Single Judge further reasoned that reopening the proceedings after such number of years will lead to further difficulty for one and all. Holding that there Page 4 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT was no jurisdictional error or miscarriage of justice, the impugned order of abatement and refusal to restore the proceedings of the Tribunal was upheld.
4. Heard learned advocate Mr. Vimal Purohit for the appellant-original petitioner and learned Assistant Government Pleader Mr. Aakash Chhaya for the respondent authorities.
4.1 When it was contended that under the provisions of O. 22 Rule 1 of the Code of Civil Procedure, it was the duty of the advocate for the opponent-dependent to inform the advocate for the appellant, as also to disclose before the Tribunal about the death of the opponents, the submission raised on behalf of the appellant- petitioner could not be brushed aside lightly,. It was submitted that had the said duty been discharged, the advocate for the appellant had taken out the proceedings at that point of time itself. In this context, it could be successfully submitted that the appellant was not liable to be attributed with any fault nor could be said to be negligent.
4.2 In addition to the submission worth to be countenanced that in the separate application for condonation, the ground was pleaded that it Page 5 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT was due to non-communication by the other side and for want of legal knowledge of the petitioners that the delay was caused which was not deliberate, and further that the 'sufficient cause' should be considered liberally and in respect of application under O. 22 R. 1, C.P.C., it should be approached with greater leniency. It was the tenable submission that delay and non- joining of the heirs could have never been intentional and deliberate, for, the only prejudice thereby to be caused was to the appellants-petitioners, and not to the other side. By not filling the application, the only sufferers were the appellants. No litigant would be presumed to be whiling away time for the sake of whiling it away, when it relates to seeking rights and remedies in law for his own redressal.
5. But then, beyond and above all the aforesaid considerations, there exists a weighter and clinching aspect. Before the Revenue Tribunal opponent No.2 Fataji Revaji was represented originally through his heir Nathuji Madhuji. Said Nathuji upon death was trough his legal heirs Kaluji Nathuji (2.1), Oppatji Nathuji (2.2), Dilaji Nathuji (2.3), Chanduji Nathuji (2.4) and Palaji Nathuji (2.5). Amongst the said heirs, opponent No. 2.1, 2.2 and 2.3 above Page 6 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT died and their heirs and legal representatives were required to be joined in the proceedings, but since it was not done within time, the Revenue Tribunal dismissed the Revision Application as having abated, and the Restoration Application came to be rejected.
5.1 It could be immediately noticed that out of opponent Nos. 2.1 to 2.5, the first three had died but the other two opponents namely opponent No. 2.4 Chanduji Nathuji and opponent No. 2.5 Palaji Nathuji were already on record in the capacity of heirs of Nathuji Madhuji. It is the settled principle that the proceedings before the court or legal forum would not abate if some of the heirs of the deceased party already happen to be on record.
5.2 There are Rules called Bombay Tenancy and Agricultural Lands (Bombay Revenue Tribunal Procedure), Rules, 1958. These rules were applicable to the revisional proceedings before the Revenue Tribunal. In chapter 4 of the Rules, Rule 25 deals with the Procedure in case of death of one of several opponents or sole opponent. The said Rule 25 provides as under, "25. Procedure in case of death of one of several opponents or sole opponent:-
If one opponent dies while the application is Page 7 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT pending, and it cannot be proceeded with unless his legal representative is made a party to the application, the applicant shall apply to the Tribunal for making the legal representative of such opponent a party to the application within 90 days from the date on which the opponent died. If the applicant fails to do so, the application shall abate as regards the deceased. If the deceased be the sole opponent, the application shall be dismissed; and if there are more than one opponents it shall be proceeded with as regards the remaining opponents."
5.3 The Rule in terms provides that where within 90 days from the date of death of the opponent, the heirs are not joined, the application shall abate as regards the deceased.
It is further provided that if there are more than one opponents in the proceedings, the application shall proceed as regards the remaining opponents. In other words the application shall not abate in its entirety.
5.4 Decision of this court in Kalidas Punjabhai Vyas vs. Girdharbhai Parsotam Kristi [ 1991 (2) GLH 118] dealt with Regulation 24 of the Bombay Revenue Tribunal Regulation, 1958. As Regulation 25 above deals with the eventuality of death of opponents, Regulation 24 pertains to the situation where one of the applicants dies and the legal heirs are not brought on record. What Page 8 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT was held in principle by the court would apply analogically. It underlined the general principle that in a situation where only one of the appellants dies, the appeal or revision before the Tribunal would abate against the deceased only and has to be proceeded with as regards the remaining appellants or applicants. It was held that the rule has to be read consistently with the general principle. While the Tribunal referred to this very decision in Kalidas Punjabhai supra), the same was misinterpreted and misapplied for its ratio.
5.5 The above Rules 24 and 25 are extension of principles stated in O. 22 of the Code of Civil Procedure, 1908. The Supreme Court in Shahazada Bi vs. Halimbhai [(2004) 7 SCC 354] reiterated the law in the context of O. 22, Rule 4, CPC, that where there is an omission to implead legal representatives of the deceased defendant, when one of the defendants has died, in such case, the suit does not abate in entirety, but only as against the deceased defendants. It was held, "Order 22 Rule 4, CPC, lays down that where within the time limit by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate against the deceased defendant. This Rule does not provide that by omission to implead Page 9 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT the legal representative of a defendant, the suit will abate as a whole. But if the case is of such a nature that the absence of legal representative of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the respondent who had died..."
5.6 Keeping in view the above principles regarding abatement of proceedings and having regard to the specific provision of Rule 25 of the aforementioned Rules, out of the five legal heirs of deceased Nathuji Madhuji arrayed as opponent Nos. 2.1 to 2.5 (here arraigned as 2.1.1 to 2.1.5) only the opponent Nos. 2.1 to 2.3 had died, whose heirs were not joined within 90 days by the petitioners. The other two being opponent Nos. 2.4 and 2.5 (respondent No. 2.1.4 and 2.1.5 respectively herein) were alive and were parties. The case was not such a nature that absence of legal representative of deceased opponents 2.1 to 2.3 would have prevented the Revenue Tribunal from proceedings with the Revision. Deceased respondents-opponents Nos. 2.1 to 2.3 could not be said to be necessary party, nor any prayers were sought against them. The land had been sold to original respondent No.3 who had in turn sold Page 10 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT it to the present petitioner. The entire proceedings could not abate and the Tribunal could have continued with the proceedings before it. The proceedings could not be held to have abated in its entirety, but only qua opponent Nos. 2.1 to 2.3 only.
6. In light of position of law obtaining as above, it has to be held that in treating the Revisional Proceedings before the Tribunal as having entirely abated and in not allowing restoration application, the judgment of learned single Judge is fraught with a manifest error of law and the jurisdictional error. When the entire proceedings had not abated in law, the delay in bringing heirs even if of more than five years, would not operate to the detriment and was of no adverse consequence for the appellant- petitioner. The delay in the facts and circumstances of the case, was a non-material aspect, a factor required to be ignored, having been rendered inconsequential. Resultantly, it is held that the Revisional Proceedings before the Gujarat Revenue Tribunal had not abated in their entirety. The proceedings did survive in respect of opponent Nos. 2.4 and 2.5-the respondent Nos. 2.1.4 and 2.1.5 herein.
6.1 The impugned order dated 15.6.2017 Page 11 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021 C/LPA/1170/2017 JUDGMENT
passed in Special Civil Application No. 19351 of 2006 is hereby set aside. Also stands set aside the order dated 5.2.2013 of the Gujarat Revenue Tribunal dismissing the Restoration Application No TEN/DA/13/2012. The Revisional proceedings before the Tribunal shall stand revived together with all interim orders and stay orders, if any, operative therein.
6.2 The Tribunal shall proceed to decide the Revision Application No. TEN. B.A. 84 of 1990 expeditiously.
6.3 The prayers made in Special Civil Application are accordingly granted.
7. The present Letters Patent Appeal is allowed.
Order in Civil Application The Civil Application for stay will not survive in view of this order passed in Letters Patent Appeal.
(N.V.ANJARIA, J) (DR. ASHOKKUMAR C. JOSHI,J) C.M. JOSHI Page 12 of 12 Downloaded on : Mon Feb 15 09:11:32 IST 2021