1. Challenge in this petition is to the order of the trial court being Regular Civil Suit No. 154 of 2000 whereby the request of impleading the heirs of the deceased plaintiff has been rejected.
2. The petitioner No. 6 and late Nathubhai Punjabhai Badwa filed suit being Regular Civil Suit No. 154 of 2000 against the present respondents for declaration and permanent injunction as well as for cancellation of sale deed dated 16th March 1999. The application Exh. 5 for injunction was moved which was allowed on 24th April 2002. The respondents being aggrieved by the same had challenged the same before Appellate forum and the appeal was dismissed on 24th August 2009.
3. During the pendency of these proceedings Shri Nathubhai passed away on 11th March 2007. As records and proceedings of the trial court were already called for by the District Court, for the purpose of deciding appeal the same was lying with the District Court.
4. An application Exh. 100 to condone the delay and to implead heirs of the deceased was filed. This was objected to by the respondent herein and the Court after hearing both the sides rejected such request, holding that the suit since is abated on the expiry of 90 days no sufficient cause has been made to Court to set aside the same.
5. Heard learned advocate for the parties and on perusal of the record there appears to be the ground for interference in the order impugned.
6. The entire thrust of reasonings of the Court is that and no cause is made out by the petitioners for setting aside the abatement. The Court has disregarded the fact that in the year 2007 when the original plaintiff Nathubhai Punjabahi died, this matter was pending before the Appellate forum and the appeal was disposed of in the year 2009. The exact date on which the record and proceedings of the trial court was sent back by the Appellate forum is not emerging from the record however, as the application Exh. 100 is moved in the year 2009, the Court was of the opinion that as one of the plaintiffs was son of the deceased, he naturally would be aware of the requirement of the heirs to be brought on record and on having failed to move such an application as also not having preferred such application before the Appellate forum, this abatement was not to be set aside.
6. This Court is of the opinion that this is too technical a view to be sustained. Admittedly when the records and proceedings were before the Appellate forum even if one of the heirs is already before the Court, the application for condoning the delay and for setting aside the abatement ought to have been approached pragmatically.
7. There cannot be more sufficiency of cause considering chronology of events and substantive cause when is surviving, The petition succeeds. The order impugned passed below Exh. 100 is quashed and set aside. Delay in preferring the application for impleading the heir is condoned hereby setting aside the abatement. Necessary amendment in the plaint shall be carried out within 15 days of the date of the order. This petition stands disposed of.
(Ms.
Sonia Gokani,J.) mary// Top