(1) Heard Mrs.Ketty A. Mehta, learned advocate for the applicants, Mr.H.M.Prachchhak. learned advocate for opponent No.1, and Ms.Asmita Patel, learned Assistant Government Pleader for opponent Nos.2 to 5.
(2) Mrs.Mehta, learned advocate for the applicants, submits that the original petitioner Harilal Chhaganlal Parekh expired in the year 2002. However, as the petition was filed by one of his sons, Shri Bharatkumar Harilal Parekh, applicant No.1.3 herein, in his capacity as power of attorney holder, was under an impression that as he has signed the vakalatnama of the advocate the proceedings would continue. It was submitted that in fact after receiving note filed by the advocate of respondent No.1 to the effect that the original petitioner has expired, learned advocate Ms.Mehta had informed the said fact to Shri Bharatkumar Harilal Parekh, applicant No.1.3 herein, regarding necessity to bring the legal heirs of the deceased on record of the proceedings. However, the said communication did not reach to said Shri Bharatkumar Harilal Parekh, applicant No.1.3 herein. It was further submitted that even an attempt was made to contact Shri Bharatkumar Harilal Parekh, through local advocate Shri G.I.Ravat, however, even Shri Ravat had expired, and hence, learned advocate for the applicants informed Shri Bharatkumar Harilal Parekh through the family members of the said Shri Ravat. It was submitted that in view of this, delay of 3111 has occurred in presenting the present application. However, the said delay has occurred only because the circumstances were beyond the control of the applicants and it was also averred that because of wrong impression that the proceedings had continued.
(3) Per contra, Mr.H.M.Prachchhak. learned advocate for opponent No.1, has vehemently opposed the application. Relying upon the affidavit it was submitted that the application deserves to be dismissed as the delay is delberate and intentional and that there is no substance in the application.
(4) Ms.Asmita Patel, learned Assistant Government Pleader appearing for opponent Nos.2 to 5, has submitted that she has no objections if the application is allowed. It may be noted that in fact the contention raised by Mr.H.M.Prachchhak. learned advocate for opponent No.1, is replied by the applicants in their rejoinder. It is stated in the rejoinder that in fact the applicants, more particularly Shri Bharatkumar Harilal Parekh, who had filed the present affidavit as power of attorney of his deceased father Harilal Chhaganlal Parekh had shifted to Tarsadi in Mangrol Taluka and formerly they were residing at Village Simodara, Tal. Mangrol because of which opponent No.1.3 herein, Shri Bharatkumar Harilal Parekh, who was handling the matter on behalf of his late father as power of attorney holder did not receive communication sent by their advocate. It appears from the title of the main writ petition that formerly the original petitioner was resident of Village Simodara, Tal. Mangrol.
(5) Considering the averments made in the application as well as the averments made in the rejoinder, the application deserves to be allowed, though the delay is enormous it cannot be said that the delay was deliberate and intentional. The contention raised by Mr.H.M.Prachchhak. learned advocate for opponent No.1, deserves to be negatived and the application deserves to be allowed.
(6) In view of the above, the application is allowed as prayed for in Paragraph No.5 of the application. Rule is made absolute accordingly. There shall be no order as to costs.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Top