(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) This application has been filed by the appellant original plaintiff making following substantive prayers :
"A) That the Hon'ble Court be pleased to permit the applicant to delete respondent no.5 viz Sushila D. Mehta and add Respondent No.6 herein Dhirajlal Jethalal Mehta as respondent no.6 as himself and as legal heir of Smt. Sushila D. Mehta in First Appeal no.3608 of 2011 and in the civil applications filed herein and be pleased to permit the Applicant herein to amend the cause titles of First Appeal no.3608 of 2011 and of the civil applications filed therein accordingly.
B) That the Hon'ble Court be pleased to permit the applicant to amend the cause title of First Appeal no.3608 of 2011 and of the Civil Applications filed therein by deleting the words 'deceased Dhirajlal Jethalal Mehta' appearing in the cause titles under the name of Respondent No.2 Rajesh D. Mehta and the words 'deceased Dr. Dhirajlal Jethalal Mehta' appearing in the cause titles under the name of Respondent No.3 Dhimant Dhirajlal Mehta replacing them with the words 'deceased Smt. Sushila D. Mehta'"
The applicant had filed Special Civil Suit No.128/2002 against one White Chemicals partnership firm as defendants. Rest of the defendants were stated to be the partners of the said partnership firm. Defendant no.3 happened to be one Dhirajlal Jethalal Mehta. Defendant no.4 was his wife Sushilaben Dhirajlal Mehta.
The purshis came to be filed by defendants no. 3 and 4 on 15.2.2010 before the trial Court stating that defendant no.3 has expired on 20.1.2010 leaving behind following heirs :
1) Rajeshbhai Dhirajlal Mehta
2) Dhimantbhai Dhirajlal Mehta
3) Dr.
Dhirajlal Jethalal Mehta It was therefore, stated that defendant no.3 has died leaving behind above-mentioned heirs. Death certificate was also produced along with said purshis.
Apparently reference to death of defendant no.3 was an obvious error. In fact defendant no.4 had died. Death certificate produced was also that of Sushilaben Dhirajlal Mehta and not of Dhirajlal Jethalal Mehta who was in fact alive. It was therefore, that the heirs of deceased Sushilaben included Dhirajlal Jethalal Mehta as one of the heirs. Perhaps misled by the first portion of the purshis that defendant no.3 has expired, plaintiff moved application for bringing his heirs on record before the trial Court. Such application was granted.
Applicant had prayed for joining two sons and wife of Dhirajlal as his legal heirs which was allowed by the trial Court and that is how the entire suit proceeded. Dhirjlal was deleted. His wife's name was continued as one of the defendants.
After the suit was dismissed, in the present appeal, original plaintiff having realized the mistake has moved this application and prayed for reliefs noted above.
From the record it clearly emerges that Dhirajlal as well as his wife Sushilaben had common heirs Rajeshbhai and Dhimantbhai two sons. Sushilaben also would leave behind her husband as additional heir. Rajeshbahi and Dhimantbhai were already brought on record. In that view of the matter I do not see any objection in allowing the applicant appellant to amend the cause title of the First Appeal.
Contention of the defendants that Dhirajlal was deleted before the trial Court and that therefore, had no chance to defend himself and that therefore, suit should be treated to have abated qua him shall be examined at the time of hearing the First Appeal finally. Equally contention of the counsel for the applicant that since by the time Dhirajlal was erroneously deleted, the suit had progressed considerably and further the contention of the counsel for the applicant that because of the stage at which Dhirajlal was deleted, the fact that other heirs were on record and that wife of Dhirajlal was also represented by the same advocate, deleting of Dhirajlal before the trial Court would not be fatal to suit proceedings shall also be examined at the time of final hearing of the appeal.
Subject to above observations, the Civil Application is disposed of.
(Akil Kureshi,J.) (C.L.
Soni,J.) (raghu) Top