1. The present Miscellaneous Civil Application has been preferred by the applicants-original opponents of Second Appeal No. 69/1983 to recall the judgment and order dated 29/06/2010 passed by this Court in Second Appeal No. 69/1983 and thereafter for an appropriate order dismissing the said Second Appeal as having been abated as no steps have been taken to bring the heirs of the original appellant on record.
2. At the outset, it is required to be noted that it was the specific case on behalf of the respondents-heirs and legal representatives of the original appellant through their advocate, Shri H.M. Parikh that as such they wrote letter to their advocate Shri M.I. Patel alongwith the names of the heirs of deceased and the death certificate so that an application for bringing the heirs can be filed and according to him as such the application for bringing the heirs of the original appellant was prepared and filed somewhere in the month of August/September, 1990. However, it is required to be noted that at present he is not in a position to substantiate the same for bringing the heirs of the original appellant on record. Under the circumstances, as on today, it is to be held that the heirs of the original appellant are not brought on record. Under the circumstances, when the order dated 29/06/2010 passed in Second Appeal No. 69/1983 has been passed in favour of a dead person, the said order deserves to be recalled and as on today, nothing is on record that any application for bringing the heirs of the original appellant has been filed and/or heirs of the original appellant are brought on record and, therefore, the Appeal deserves to be dismissed as having been abated with a liberty in favour of the heirs of the original appellant to submit an appropriate application.
3. In view of the above, the present application is allowed and the judgment and order passed by this Court in Second Appeal No. 69/1983 dated 29/06/2010 is hereby recalled as the heirs of the original appellant are not brought on record and Second Appeal No. 69/1983 is dismissed as having been abated. It goes without saying that it will always be open for the heirs of the original appellant to submit an appropriate application for bringing them on record and pray for setting aside abatement with delay condone application and as and when such an application is made, the same be considered in accordance with law and on its own merits for which this Court has not expressed anything on merits in favour of either parties. Rule is made absolute accordingly.
(M.R.
SHAH, J.) siji Top