1. The petitioners herein are the original defendants No.7,8,17 and 18 whereas respondent Nos.1 to 10 herein are the original plaintiffs and respondent Nos.11 to 15 are the original defendants No.1 to 5 and respondents No.16 to 23 are the original defendants No.9 to 16 in Special Civil Suit No.20 of 2003.
2. The petition preferred under Article 226 and 227 of the Constitution of India challenges the order passed in said Special Civil Suit dated 2.12.2010 on an application preferred vide Exh.699 whereby the 5th Additional Senior Civil Judge, Jamnagar rejected the application of the present petitioners with cost.
3. One Taraben Ratibhai Punatar filed Municipal Civil Suit for possession, partition and declaration against Manjulaben Rajnikant Punatar. One of the original plaintiffs namely, Mukesh Jantilal Mehta expired when the matter was posted for recording the evidence and his legal heirs were not brought on record. Applications were preferred by the original defendants under Order 21 Rules 2 and 3 of the Code of Civil Procedure for abatement of the suits which were rejected by the learned Civil Judge. These orders were passed below Exh.670 and 684 on 18.1.2010.
4. These orders came to be challenged in Civil Revision Application(Stamp) No.95 of 2010 and this Court passed an order dated 28.10.2010 as the application was not pressed and withdrawal was sought of the said application. Accordingly, both the delay condonation application as well as Civil Revision Application(Stamp)No.795 of 2010 stood disposed of.
5. It is further the say of the petitioner that once again the application was moved Exh.699 whereby request was made to abate the entire suit. In view of the fact that the heirs of some of the plaintiffs had not been impleaded, the property being the joint property and the interest of the parties being indivisible and joint, the suit abating qua one would abate qua the rest. For nonimpleading the heirs of both the original plaintiffs, namely, Narottam Chotalal Vora and Mukesh Jayantilal Mehta, the suit cannot proceed with in absence of proper and necessary parties. The Court rejected the said application preferred by the present petitioners original defendants No. 6,7, 8 and 17. It is the say of the petitioner that when the heirs of the deceased original plaintiff No.6 withdrew the application preferred before the High Court on 28.10.2010, the suit of the plaintiff attracted dismissal. The Court noted that the decision of the Apex Court sought to be relied upon as rendered in case of Babu Sukhram Singh vs Ram Dular Singh and others reported in AIR 1973 SC 204 cannot apply to the facts of the instant case in as much as the cause of action continues to survive even after the original plaintiff has passed away. It also did not find reliance of decision of Himachal Pradesh High Court in the case of Kewal Singh and others vs Munshi Ram and another reported in AIR 1982 (HP) 36, where the decree obtained of possession was obtained against the promoter and during the pendency of the appeal, some the purchasers had died, whose legal representatives were not brought on record. Therefore, the Court held that such appeal was liable to be rejected.
In the said order, the Court also made a note of the fact that the plaintiffs (in all 10 in number) brought the suit against the heirs of deceased Chotalal Hemchandra Punatar and others with the prayers of partition, mense profit of the preemption, possession etc. The Court also noted that merely on account of the death of the original plaintiff No.6 suit cannot abate. It was further aggrieved by the fact that for the past many dates, suit was pending for the arguments of the original defendants and, therefore, it rejected the application by directing the parties to proceed with the matter. Learned Senior Advocate Mr. Tanna appearing for the petitioner has urged that the Court passed an erroneous order amounting to the miscarriage of justice as no suit of partition and other prayers could be proceeded with in absence of the heirs of both the original plaintiffs Nos. 5 and 6. Moreover, if suit qua a particular plaintiff abates, it must abate qua the rest. It is the say of the learned Senior Advocate that the very nature of the suit is indicative that the presence of all the heirs would be necessary.
6. Mr. Viral Shah appearing for the respondents original plaintiff has urged that the application preferred below Exh.699 has been dismissed on 2.12.2010 with cost. Present petition has been preferred on 16.12.2010 and notice has been issued on 17.12.2011. According to the learned advocate there is a sheer abuse of process of law by the present petitioners by filing the present petition, whereby further proceedings of the suit have been stayed. He also urged that there was one another application tendered by the petitioner No.3 herein vide Exh.704 before the trial Court under Order 2 Rule 1,2 & 3. These provisions, according to the learned advocates, have been made to avoid multiplicity of the proceedings and petitioner ostensibly preferred the application under these provisions where a request was made to dismiss the suit. The Court dismissed such an application with cost. Trial Court also noted that the purshis of closure of evidence is on record from 6.5.2005 and the matter is posted for arguments of both the sides. For more than 5 years submissions have not been heard. There is an attempt on the part of the defendants to proceed with the same on one or the other grounds. Therefore, the Court rejected the same.
7. On thus having heard, learned advocates for the parties and on having considered the materials on record, this petition being devoid of merits, deserves no entertainment for the following reasons:
7.1 It is an admitted fact that the original plaintiff Nos. 6 and 7 both have passed away and their heirs have not been brought on record. The application was given after nearly 1440 months for bringing the heirs of deceased Mukeshbhai. The plaintiffs are the cosharers. The Trial Court did not accept the version of the respondent plaintiff to permit the condonation of delay of 1440 months, on the ground that heirs being literate and cosharers would be aware of the death of the other person. This order came to be challenged before the High Court in Civil Revision Application (Stamp)No.95 of 2010 and the same was decided on 28.10.2010 by the following order: “Learned advocate Mr. Joshi for the applicant under instructions does not press this application and seeks permission to withdraw the same. Hence, the application stands disposed of as withdrawn. Rule is discharged.
In view of the fact that the delay condonation application stands withdrawn the substantive proceedings being Civil Revision Application St. No.95 of 2010 also stands disposed of.”
8. There is no rejection of request to implead the heirs as parties by this Court but, it was decision taken voluntarily to withdraw the same instead of challenging the very basis of the order, which rejected the request of impleading the heirs of original plaintiff No.6. Thereafter, the application was preferred under Exh. 699 on 18.11.2010 nearly after 3 weeks of the order. The Court rejected such an application by giving detailed reasons and also noted why the decisions sought to be relied upon by the present petitioners were not applicable to the facts o the instant case. The request of abating the entire suit, in wake of non joinder of the deceased plaintiffs, never came to be accepted and approved by the Court as according to it, the cause very much survives. This being the suit for partition and other ancillary reliefs, it strongly felt that the death of those two plaintiffs cannot take away the right the rest, while this petition is pending yet another application was moved Exh.704 under Order 2 Rule 123. The whole object of these provisions is to avoid the multiplicity of the suit which are founded on the same cause of action, or which relied to the same subject matter. Rule 2 obliges the plaintiff to include his whole claim which he is entitled to make in respect of a cause of action and provides for consequences if there is failure on the part of the plaintiff to so do it. Plaintiff, who was entitled to several reliefs against the defendants in respect of the same cause of action was not permitted to split up the claims or to omit any of such claims. The Court on perusing the earlier Regular Civil Suit No.1102 of 1985 and the present suit being 20 of 1990, held that the provision of Order 2 Rule 123 are not attracted. While deciding the said application on 8.2.2011, the Court noted that for the past 5 years, the matter is pending and waiting for the submission of both the sides under one or the other pretext. Defendants chose not to proceed with the matter. Although it is fervently argued by the learned counsel that the application moved by the original defendants No.7,8,9 and 17 cannot be termed as frivolous and the same is preferred under the law.
The fact remains that before the trial Court, the matter is not proceeding for final hearing. The say of the petitioners that the suit of the plaintiff is not permissible under the present form and that the same cannot proceed in absence of the heirs of the deceased the original plaintiffs, though has no substance as there are other plaintiffs and as Court has rightly held the cause very much survives. Assuming without that this challenge is available with the petitioners, nothing would estopp the Court from deciding that after the final submissions of the parties where, the Court can also dismiss the suit of the plaintiff respondents if otherwise, the petitioners herein and other respondents who are the original defendants, would establish legal infirmity in proceeding with the same in absence of those legal heirs. However, considering the conduct of the original defendants as noted by the trial Court they appear to be delaying the hearing of final submissions when the evidence is already recorded and closure purshis is tendered on 6.5.2005. Almost 7 years have elapsed and arguments have not been heard till the date and in such circumstances, not only there is no jurisdictional error but there is also no miscarriage of justice that could be pointed out for this Court to exercise the writ jurisdiction under Article 227 of the Constitution of India, which requires sparing use for extraordinary circumstances. One may profitably reproduce the ratio of the Supreme Court in the case of Jai Singh and others vs. Municipal Corporation of Delhi and another reported in (2010)9 SCC 385: “ The High Court, under Article 227 of the constitution of India,has the jurisdiction to ensure that all subordinate courts as well as statutory or quasijudicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the wellestablished principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the wellknown adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.”
In this view of the matter, this petition merits no acceptance.
There is a further need to direct expeditious hearing of the suit keeping in view that the same is pending for the past 7 years and for nearly 2 years, the proceedings could not be proceeded with on account of the stay granted in the present proceedings.
9. In the aforementioned premise, no interference is required in the impugned order passed by the trial Court below Exh.699 and the petition stands dismissed in the aforementioned terms.
10. As a parting note, the trial Court is directed to expeditiously proceed with the final hearing of the submissions and decide the suit earliest as possible but not later than 4 months from the date of receipt of this order. The petition stands disposed of accordingly. Interim relief granted earlier stands vacated forthwith.
( Ms. Sonia Gokani, J. ) sudhir