1. The petitioners have challenged the order dated 12.9.2011 passed below application Exh. 91 and 96 in Regular Civil Appeal No. 14 of 1995. Regular Civil Appeal No. 14 of 1995 was preferred by the respondent herein against the judgment and decree dated 31st January, 1995 passed by the learned Civil Judge, (J.D.), Nakhtrana-Kachchh in Regular Civil Suit No. 19 of 1993. Pending the Civil Appeal, respondent No.2 in the said appeal named Mavjibhai Bhimjibhai Nakrani died on 9.3.2004. The respondent herein, therefore, preferred application Exh. 36 as stated by the learned advocate for the petitioners to bring on record the heirs of deceased Mavjibhai Bhimjibhai Nakrani. The said application was allowed. However, later on, respondent came to know that there was clerical error in describing the name of the deceased person. Instead of describing name of Mavjibhai Bhimjibhai Nakrani who expired pending the appeal, name of Laljibhai was written as deceased person in the said application.
2. Since, by mistake, application for bringing heirs of Laljibhai was allowed and no heirs of deceased Mavjibhai were brought on record, the petitioners preferred application Exh. 91 to declare that the appeal filed by the respondent has abated.
3. On coming to know about such mistake crept in original application Exh. 36, the respondent also preferred application Exh. 96 to allow the respondent to make correction in application Exh. 36 by writing name of Mavjibhai in place of Laljibhai and to permit the respondent to bring on record the heirs of deceased Mavjibhai. The learned Appellate Judge before whom the appeal is pending allowed the application filed by the respondent at Exh. 96 and permitted the respondent to bring on record the heirs of deceased Mavjibhai, respondent NO.2 in the appeal. The resultant effect was that the application preferred by the petitioners at Exh. 91 stood disposed of vide said order.
4. Learned Advocate for the petitioners submitted that since the application Exh. 36 was specifically for bringing the heirs of Laljibhai that is respondent NO.1 and since there was no application for bringing heirs of deceased Mavjibhai, by virtue of the provisions of Order 22, the appeal preferred by the respondent stood abated and, therefore, there was no question of permitting the respondent to make any correction in original application Exh. 36. Learned Advocate for the petitioners also submitted that the learned appellate Judge ought not to have allowed application Exh. 96 after long period without any sufficient reasons shown by the respondents. He also submitted that in the said application, there was no any prayer for setting aside the abatement and, therefore, application Exh. 96 was required to be treated as original application for bringing heirs of deceased Mavjibhai on record and respondent were required to pray for setting aside abatement. He, submitted that the learned Judge has exceeded his jurisdiction while allowing application Exh. 96 and disposing of application Exh. 91 preferred by the petitioners. He, therefore, urged to allow this petition and quash and set aside the impugned order passed below Exh. 96.
5. As against the above said arguments, learned Advocate Shri S.M. Shah for the respondent submitted that it was an apparent error and mistake committed while preferring application Exh. 36. In fact, application Exh. 36 was moved for bringing heirs of deceased Mavjibhai. Learned Advocate further submitted that there was no question of moving application for bringing heirs of respondent No.1 Laljibhai because Laljibhai was already alive and, therefore, it was obviously clerical error crept in application Exh. 36. In order to remove that error, learned Judge has permitted the respondent to correct that error and to bring on record the heirs of deceased Mavjibhai. Learned Advocate for the respondent further submitted that the learned Judge has rightly come to the conclusion that instead of taking the technical view, it would be in the fitness of things and in the interest of justice to allow application Exh. 96. By doing so, learned Judge has not committed any error. Learned Advocate Mr. Shah has therefore urged to reject this petition filed by the petitioners.
6. I have heard the learned advocates for the parties. I have also considered the documents on record. Learned Judge has found that there was a mistake crept in application Exh. 36. I find that instead of describing name of deceased Mavjibhai, name of Laljibhai was described in the said application which was allowed to be corrected by the learned Judge. However, respondent had no knowledge about such mistake crept in the said application Exh. 36. Later on, when the petitioners made application Exh. 91 for declaring that the appeal had abated, respondent having come to know about such mistake committed while preferring application Exh.36, the respondent moved application Exh. 96 to permit him to correct the said mistake and allow him to bring on record the heirs of deceased Mavjibhai. In fact, application Exh. 36 was already allowed. It was a simple case of correction of mistake which was crept in application Exh. 36. Therefore, I find that in allowing application Exh. 96, the learned Judge has not committed any error of jurisdiction. In fact, order passed by the learned Judge below Exh. 96 would subserve the interest of justice. In view of this position, I do not find any error committed by the learned Judge. In view of this, this petition is rejected. Notice is discharged. No order as to costs.
(C.L.
Soni,J.) an vyas Top