Gujarat High Court
Legal Heirs Of Late Shri Pramukhlal … vs Kunjbihari Madhavrao Bhagwat – Since … on 19 August, 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
Reserved On : 11/08/2025
Pronounced On : 19/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18589 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
==========================================================
Approved for Reporting Yes No
✓
==========================================================
LEGAL HEIRS OF LATE SHRI PRAMUKHLAL JIVANLAL & ORS.
Versus
KUNJBIHARI MADHAVRAO BHAGWAT - SINCE DECEASED & ORS.
==========================================================
Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,2,2.1
MR SHAILESH DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 10
MR BJ TRIVEDI(921) for the Respondent(s) No. 6
MR MAHAVIRDAN H RATNU(13822) for the Respondent(s) No. 4
MR NM KAPADIA(394) for the Respondent(s) No. 5
MR YH MOTIRAMANI(3720) for the Respondent(s) No. 13
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 6
RULE SERVED BY DS for the Respondent(s) No. 11,12
RULE UNSERVED for the Respondent(s) No. 9
UNSERVED EXPIRED (R) for the Respondent(s) No. 7
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
TABLE OF CONTENTS
THE SHORT FACTS OF THE CASE………………………………………3
SUBMISSIONS OF THE PETITIONERS – APPLICANTS……………….8
SUBMISSION OF THE RESPONDENTS-DEFENDANTS………………13
REJOINDER OF SUBMISSIONS OF THE PETITIONERS…………….18
POINT FOR DETERMINATION…………………………………………..20
ANALYSIS…………………………………………………………………….21
POINT NO.I………………………………………………………………….21
POINT NO.II…………………………………………………………………25
CONCLUSION………………………………………………………………..53
1. Heard learned Senior advocate Mr. Dhaval D. Vyas with
Page 1 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
learned advocate Mr. D.K.Puj appearing for the petitioners, and
learned Senior Advocate Mr.Mihir Joshi with learned advocate
Mr.N.M.Kapadiya for respondent No.5, and Learned AGP
Mr.Shailesh Desai appearing for respondent no.10, Learned
advocate Mr.Brijesh Trivedi for respondent no.6 and learned
advocate Mr.Y.H.Motiramani for the respondent no.14 and
learned advocate Mr.Mahavirdan H. Ratnu for respondent no.4.
Though served, none appears for rest of the respondents.
2. The present writ application is filed under Article 227 of
the Constitution of India, seeking the following relief:-
“A. This Hon’ble Court may kindly be pleased to issue a writ of
Mandamus or any other writ, order or direction in the nature of
Mandamus quashing and setting aside the order passed by the Ld.
Senior Civil Judge below an Application exhibit 190 in Regular Civil
Suit no.60 of 1983 rejecting the Application filed by the Petitioner
for bringing them on record as Plaintiffs being legal heirs /
representatives of the Plaintiff no.1.1 to 1.4 and 2.1 respectively
and also the order passed below exhibit 1 in Regular Civil Suit no.
60 of 1983.
B. This Hon’ble Court may be further pleased to issue the writ of
Mandamus or any other writ, order, direction in the nature
Mandamus directing the Ld. Senior Civil Judge to permit the
Petitioner to be joined as Plaintiffs in Regular Civil Suit no.60 of
1983 and further be pleased to direct the Ld. Senior Civil Judge to
set-aside the abetment and decide the Suit on merit after hearing
the Petitioners.
Page 2 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
C. During the pendency and final disposal of this Petition, the
impugned orders passed by the Ld. Senior Civil Judge on
001.10.2015 be stayed and the Respondents be restrained from
dealing with the Suit property in any manner whatsoever.
D. Cost of this Petition as well as the proceedings may kindly be
awarded to the Petitioners, in the interest of Justice.
E. Any other and further relief, this Hon’ble Court deems fit, may
kindly be granted, in the interest of justice.”
3. By way of the present application, the petitioners herein
have questioned the legality of the order dated 01.10.2015
passed by the 4th Additional Senior Civil Judge, Ahmedabad
(Rural), passed below Exhibit 190 and Exhibit 1 in Regular
Civil Suit No. 60 of 1983.
THE SHORT FACTS OF THE CASE
4. The petitioner Nos. 1.1 to 1.4 are the legal heirs of the
original plaintiff No. 1, whereas petitioner No. 2.1 is the legal
representative of the original plaintiff No.2 of Regular Civil
Suit No. 60 of 1983, filed against the respondents herein.
4.1. The suit is filed seeking specific performance of an
agreement to sell executed by the father of defendant Nos. 1
to 9 herein, in favour of the original plaintiffs. The suit was
Page 3 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
decided on its merits, and vide judgment and decree dated
13.09.1996, the Trial Court dismissed the suit.
4.2. At the relevant point of time, the appeal was required
to be filed before this Court, it appears that only original
plaintiff No. 2 had filed First Appeal No. 5304 of 1996 before
this Court, wherein original plaintiff No. 1 was joined as
respondent No. 14.
4.3. It further appears that in view of an amendment in
the Gujarat Civil Courts Act, vide order dated 19.07.2005, the
Division Bench of this Court transferred the said First Appeal
to the District Court concerned. Accordingly, the said appeal
was transferred to the District Court, which was renumbered as
Regular Civil Appeal No. 27 of 2006.
4.4. The original plaintiff No. 1 died on 05.11.1999. One
of his legal heirs, i.e., petitioner No. 1.3 herein, had filed an
application below Exhibit 11 in Regular Civil Appeal No. 27 of
2006, whereby he requested the Appellate Court to join him as
a legal heir of the deceased plaintiff No. 1 as appellant No. 2,
Page 4 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
which was allowed.
4.5. The plain reading of such application would indicate
that it was filed by petitioner No. 1.3 to be joined as legal
heir of the deceased original plaintiff No. 1. Such application
appears to have been filed on 28.06.2006, which came to be
allowed by the Appellate Court vide its order dated
06.07.2006. The said order passed by the Appellate Court was
never questioned by anyone, including the respondents herein,
which attained finality. So, in view of the aforesaid order
passed by the Appellate Court, petitioner No. 1.3, being one of
the legal heirs of original plaintiff No. 1, was joined as
appellant No. 2 in the said appeal.
4.6. After hearing the parties, the Appellate Court, vide its
judgment and decree dated 19.06.2012, partly allowed said
appeal and thereby remanded the matter back to the Trial
Court to decide the suit on its merits. It has been so observed
by the Appellate Court that despite answering issue no. 1 to 6
in favour of plaintiffs, Trial Court has given self –
Page 5 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
contradictory finding on issue no. 7 & 11. Thus, Appellate
Court has permitted parties to the suit to lead their evidence
in regards to issue no. 7 & 11. Accordingly, remanded the
matter back to the Trial Court.
4.7. After remand of the matter, the suit, though instituted
in the year 1983, was restored back to its original file in the
year 2012. The impugned application came to be filed below
Exhibit 190 by the petitioners herein, claiming to be legal
heirs of original plaintiff No. 1 as well as legal representatives
of original plaintiff No. 2, respectively.
4.8. It is contended in the impugned application that as the
entire suit and appeal proceedings were taken care of by
original plaintiff No. 2, who died on 29.05.2014, and as such
only petitioner No. 1.3 came to be joined in the appeal
proceedings as one of the legal heirs of original plaintiff No. 1,
the other legal heirs had no knowledge about the pendency of
such appeal. Nonetheless, when they received a phone call
from the advocate concerned on 23.07.2015 and on inquiring
Page 6 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
about the status of the suit, they came to know about the
pendency of the suit.
4.9. So far as petitioner No. 2.1 is concerned, he is holding
the Will of the deceased original plaintiff No. 2, wherein, by
way of such Will, the right in relation to the suit property is
transferred in favour of him.
4.10. In light of the aforesaid facts and circumstances, by
way of the impugned application having filed on 30.07.2015,
the petitioners have prayed to the Trial Court to set aside the
abatement, condone the delay in bringing the legal heirs of the
original plaintiffs, and so also, bring the legal heirs of the
original plaintiffs on record of the suit. The impugned
application is supported by an affidavit, albeit sworn by
petitioner No. 2.1, i.e., the legal representative of original
plaintiff No. 2.
4.11. It further appears that the death certificate of original
plaintiff No. 1 and the registered Will of original plaintiff No.
2 were produced on record along with the impugned
Page 7 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
application. Nonetheless, a copy of the death certificate of
original plaintiff No. 2 was not submitted along with the
impugned application. The defendant No. 5 appears to have
opposed the impugned application by his reply filed below
Exhibit 194 in the suit.
4.12. After hearing the parties, the Trial Court, vide its
order dated 01.10.2015, rejected the impugned application filed
below Exhibit 190 in the suit. So, it has not allowed all legal
heirs of original plaintiff No. 1 as well as the legal
representative of original plaintiff No. 2 to be substituted on
record of the suit. Consequently, on the very same day, the
Trial Court has disposed of the suit as being abated, having
passed an order below Exhibit 1 in the suit.
5. Feeling aggrieved and dissatisfied with the aforesaid, the
petitioners have preferred the present writ application.
SUBMISSIONS OF THE PETITIONERS – APPLICANTS
5.1. Learned Senior Advocate, Mr. Dhaval D. Vyas, would
submit that the impugned orders passed by the Trial Court is
Page 8 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
not only erroneous and perverse but passed without properly
exercising the jurisdiction so vested in it, thereby Trial Court
has committed a serious error of law.
5.2. Learned Senior Advocate, Mr. Vyas, would submit that
the Trial Court has manifestly erred in observing that in the
absence of any separate application seeking condonation of
delay or setting aside the abatement of the suit not being filed
by petitioners, as the case may be, the impugned application
came to be rejected.
5.3. Learned Senior Advocate, Mr. Vyas, would submit that
as per the settled legal position, there is no mandatory
requirement under law to file such a separate application,
inasmuch as the Court can very well consider the averments
made in the application as regards a sufficient cause having
been made out which prevented the petitioners from filing
such application within the stipulated time.
5.4. Learned Senior Advocate, Mr. Vyas, would further
submit that on one hand, the Trial Court having unnoticed the
Page 9 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
fact that one of legal heirs of original plaintiff No.1 already on
record being substituted in appeal and having reached to the
conclusion that in the absence of the death certificate of
plaintiff No. 2, his death cannot be believed; then it could not
have abated the suit. It is submitted that as one of the legal
heirs of plaintiff No. 1 was already brought on record of the
appeal, then for all practical purposes, when the matter was
remanded back to the Trial Court by the Appellate Court, the
Trial Court should have considered one of the legal heirs of
plaintiff No. 1 to be brought on the record of the suit itself. It
is further submitted that in the absence of a copy of the death
certificate of plaintiff No. 2 being available on the record of
the suit, the Trial Court could not have presumed that he
having died, the suit got abated.
5.5. Learned Senior Advocate, Mr. Vyas, would further
submit that the factum of the death of plaintiff No. 2 was as
such not in dispute, and in view of the fact that a copy of the
death certificate is made available on the record of this present
application, being produced at an Annexure G (Page 91),
Page 10 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
which is issued by the Ahmedabad Municipal Corporation
(AMC), the legal representative of plaintiff No. 2 requires to be
brought on record in the interest of justice.
5.6. Learned Senior advocate, Mr. Vyas, would respectfully
submit that when one of the legal heirs of original plaintiff
No. 1 is already on record, so, no prejudice would have been
caused to the defendants if the remaining legal heirs of
original plaintiff No. 1 could have been allowed to be brought
on record of the suit.
5.7. Learned Senior Advocate, Mr. Vyas, would further
submit that plaintiff No. 2, having died on 29.05.2014, had
executed a registered Will in favour of petitioner No. 2.1
herein, whereby the interest of plaintiff No. 2 in the suit land
was bequeathed in favour of petitioner No. 2.1. In such factual
situation on record, petitioner No. 2.1 requires to be
considered as a legal representative of original plaintiff No. 2
ought to have been brought on record.
5.8. Learned Senior Advocate, Mr. Vyas, would further
Page 11 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
submit that as per the settled legal position, while adjudicating
the impugned application, the Trial Court is required to take a
liberal view, whereby it aims to deliver justice to the parties
especially when no serious prejudice would cause to the
defendants as they can still have a right to defend the suit on
its merits being remanded back.
5.9. Learned Senior Advocate, Mr. Vyas, would respectfully
submit that when there is no mala fide intention on the part
of the petitioners and/or any dilatory tactics used by them
when they filed the impugned application, impugned
application requires to be allowed in the interest of justice.
5.10. To buttress his arguments, learned Senior Advocate,
Mr. Vyas, would rely upon the following decisions:-
(i) Rangubai Kom Shankar Jagtap vs. Sunderabai Bharatar
Sakharam Jedhe and others reported in AIR 1965 SC 1794
(paras 8 and 9);
(ii) Mithailal Dalsangar Singh and others vs. Annabai Devram
Kini and Others reported in (2003) 10 SCC 691;
(iii) Om Prakash Gupta Alias Lalloowa (deceased) vs Satish
Chandra (Now Deceased) reported in 2025 SCC Online SC
291 : (2025) INSC 183;
(iv) Mangluram Dewangan vs. Surendra Singh and others
Page 12 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
reported in (2011) 12 SCC 773;
(v) Radhaballav Chaubey and others vs. Mahadeve Chaubey and
others reported in 1972 SC Online 171 (para 3).
SUBMISSION OF THE RESPONDENTS-DEFENDANTS
6. Per Contra, Learned Senior Advocate, Mr. Mihir Joshi,
who is appearing for respondent No. 5, has vehemently
opposed the present application, contending, inter alia, that
there is a gross delay on the part of the petitioners who filed
the impugned application, inasmuch as the death of plaintiff
No. 1 took place during the pendency of the appeal on
05.11.1999 and plaintiff No. 2 died on 29.05.2014, but the
impugned application came to be filed only on 30.07.2015 for
substitution of their legal heirs/representative.
6.1. Learned Senior Advocate, Mr. Joshi, would submit that
petitioner No. 1.3 herein was not joined as a legal heir of
original plaintiff No. 1 in the appeal, but the prayer made in
the application filed by him was to the effect that he should
be joined in the appeal as appellant No. 2, which was
accepted, thereby bringing him on the record of the appeal. It
Page 13 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
is respectfully submitted that at that time, the other legal heirs
could have approached the Appellate Court by filing an
appropriate application, but having not chosen to substitute
themselves in the appeal, the impugned application is nothing
but a wakeup call from slumber, and in such a situation, the
rest of the legal heirs of original plaintiff No. 1 could not have
been brought on record, and have been correctly not brought
on record by the Trial Court.
6.2. Learned Senior Advocate, Mr. Joshi, would further
submit that petitioner No. 2.1 herein, claiming to be the legal
representative of the deceased original plaintiff No. 2, a
registered Will having been executed in his favour, on the
strength of such Will, he could not have been brought on
record of the suit, inasmuch as there is also no sufficient cause
made out by him while filing the impugned application.
Nonetheless, under the instruction of his client, learned Senior
Advocate Mr. Joshi would request that if this Court is inclined
to entertain and allow the present application, the right of the
defendants to question any right accrued in favour of petitioner
Page 14 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
No. 2.1 on the strength of the alleged registered Will of
plaintiff No. 2 in his favour and his entitlement to receive any
benefit on the strength of such Will in the suit be kept open in
favour of the defendants as at this stage, defendants are not
inviting any reasons from this Court on such issue.
6.3. Learned Senior Advocate, Mr. Joshi, would further
submit that when the legal heirs of original plaintiff No. 1, so
also original plaintiff No. 2, were not brought on record within
the statutory period of limitation, the suit got abated
automatically and as such there was no formal expression of
the Court requires on it. It is submitted that when a prayer
made for setting aside the abatement is refused under Order
22, Rule 9 of the Civil Procedure Code, 1908 (hereinafter
referred to as ‘the CPC‘) by the Trial Court, having rejected the
impugned application, there is an alternative statutory appeal
remedy under Order 43, Rule 1(k) of the CPC available to the
petitioners.
6.4. Learned Senior Advocate, Mr. Joshi, would respectfully
Page 15 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
submit that when there is a statutory alternative remedy
available to the petitioners to file an appeal from the order
against the impugned order passed by the Trial Court, this
Court cannot and should not entertain the writ application
being filed under Article 227 of the Constitution of India. It is
submitted that merely because this Court, vide its order dated
03.11.2015, has admitted this writ application and so also
granted interim relief in favour of the petitioners, it would not
be a ground not to relegate the petitioners to the alternative
remedy.
6.5. Learned Senior Advocate, Mr. Joshi, would further
submit that the affidavit which was submitted in support of
the impugned application was sworn only by the alleged legal
representative of original plaintiff No. 2 i.e. Petitioner No. 2.1
herein, and there is no independent affidavit filed by the legal
heirs of original plaintiff No. 1 in support of the impugned
application. It is submitted that in this view of the matter, the
impugned application was otherwise not to be entertained,
which was correctly not entertained by the Trial Court.
Page 16 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
6.6. Learned Senior Advocate, Mr. Joshi, would respectfully
submit that the petitioners herein have neither made out any
sufficient cause nor disclosed any justifiable reasons in the
impugned application from which it can be inferred that there
was a bona fide delay on their part in not filing the impugned
application at the given point of time. It is submitted that the
suit was very old, and having considered the inherent lacunae
on the part of the petitioners when the filed the impugned
application, the Trial Court has correctly not exercised
jurisdiction and discretion in their favour, thus rejecting the
impugned application.
6.7. To buttress his argument, Learned Senior Advocate,
Mr. Joshi, would rely upon the decision in the case of
Mohamed Ali vs. V. Jaya and Others reported in (2022) 10
SCC 477.
7. Learned advocates appearing for the other respondents
have adopted the arguments advanced by learned Senior
Advocate Mr. Joshi and requested this Court to reject the
Page 17 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
present writ application.
REJOINDER OF SUBMISSIONS OF THE PETITIONERS
8. Learned Senior Advocate, Mr. Vyas, would submit that
when this Court, at the first instance, admitted the present
writ application in the year 2015, considering the peculiar facts
and circumstances of the case and the nature of the impugned
order, this Court may not relegate the petitioners to an
alternative remedy. It is submitted that substantial time has
also passed by now, and considering the nature of the
impugned application and the order passed thereon, it would
not be appropriate to relegate the petitioners to an alternative
remedy.
8.1. Learned Senior Advocate, Mr. Vyas, would further
submit that as per the decision of the Hon’ble Supreme Court
in the case of Om Prakash Gupta (supra), there is no need to
file any separate application for setting aside abatement and so
also a delay application, and in that view of the matter, the
impugned application having prayed for bringing the legal
Page 18 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
heirs of the original plaintiffs on record of the suit by further
praying for condonation of delay and setting aside the
abatement of the suit, the impugned order passed by the Trial
Court would not be considered as an order only passed under
8.2. It is respectfully submitted that considering the nature
of the relief as sought in the impugned application, the
appropriate relief available under law would be to file the
present writ application under Article 227 of the Constitution
of India, which has already been undertaken by the petitioners.
8.3. Learned Senior Advocate, Mr. Vyas, would further
submit that the right to sue survived in favour of the
petitioners, being the legal heirs and legal representatives of
the original plaintiffs, as the case may be, and when one of
the legal heirs of plaintiff No. 1 was already brought on record
and available when impugned order passed, no serious
prejudice would be caused to the defendants if the other legal
heirs and representatives of plaintiffs were allowed to be
Page 19 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
brought on record of the suit.
8.4. Learned Senior Advocate, Mr. Vyas, would further
submit that once the impugned order passed below Exhibit 190
is quashed and set aside by this Court, the order passed below
Exhibit 1, which would be a consequential order, would not
stand in the eye of the law and is required to be set aside.
8.5. Making the above submissions, learned Advocate Mr.
Vyas would request this Court to allow the present application.
9. No other and further submissions are made by any of the
parties.
POINT FOR DETERMINATION
(I) Whether, in the facts and circumstances of the
case, the order impugned in present writ application
an appealable order under Order 43 Rule 1(k) of CPC
or not?
(II) Whether, in the facts and circumstances of the
case, is there any gross irregularity, illegality, and/or
Page 20 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
any jurisdictional error committed by the Trial Court
while passing the impugned orders, when rejected the
impugned application?
ANALYSIS
POINT NO.I
10. Learned Senior Advocate, Mr. Joshi, has vehemently
opposed the maintainability of the present writ application,
inasmuch as, according to him, when the Trial Court has not
set aside the abatement, having rejected the impugned
application, such an order was an appealable one by way of
an appeal from order under Order 43, Rule 1(k) of the CPC. At
the first blush, the argument looks attractive, but on deep
scrutiny, requires rejection.
11. At the outset, it is required to be observed that though a
detailed affidavit-in-reply was filed by only respondent No. 5
herein (defendant No.5), opposing the present writ application,
I nowhere found that defendant No. 5 raised such a plea about
an alternative remedy available to the petitioners to file an
Page 21 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
appeal under Order 43, Rule 1(k) of the CPC. Such a plea for
the first time was pressed into service during the course of the
argument of learned Senior Advocate Mr. Joshi. In light of the
aforesaid facts and circumstances of the case narrated herein
above, and when this Court not only admitted the present
application at the first instance, vide its order dated
03.11.2015, but also granted an interim stay, and so also due
to the following reasons, such a plea is not entertained by this
Court:-
11.1. It remains undisputed that the impugned application,
filed below Exhibit 190, having a prayer to allow the
petitioners to be brought on record of the suit, being the legal
heirs/legal representatives of the original plaintiffs respectively.
As there was a delay in filing such application and there was
an abatement, thus requested to condone such delay and also
sought for set aside abatement. Such composite request made
by the petitioners in the impugned application filed before the
Trial Court, whereby they requested to allow the impugned
application.
Page 22 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
11.2. If such an application would have been allowed by the
Trial Court, then, as per the ratio laid down in the case of
Om Prakash Gupta (supra), (relevant portion of it quoted in
later part of this judgement), the Trial Court would deemed to
have condoned the delay and so also set aside the abatement,
irrespective of not having made any such separate prayers to
that effect in the impugned application.
11.3. As a matter of record, in the case on hand also, there
is no such separate prayer made by the petitioners requesting
the Trial Court to set aside the abatement. In that view of the
matter, it be gainsaid that the impugned application was filed
only under Order 22, Rule 9 of the CPC and not under Order
22, Rule 3 of the CPC.
11.4. According to my view, considering the nature of the
application and the request made by the petitioners while
submitting the impugned application, it would not be correct
to say that the impugned application could only be treated and
stricto sensu filed under Order 22, Rule 9 of the CPC.
Page 23 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
11.5. Having arrived at the aforesaid conclusion, when the
impugned application cannot be treated as having been only
filed under Order 22, Rule 9 of the CPC, the question of
relegating the petitioners to the Appellate Court, having a
statutory alternative remedy to file an appeal under Order 43,
Rule 1(k) of the CPC against refusal of setting aside abatement,
would not arise. It is even not appropriate in light of the facts
and circumstance of this case to adopt such recourse.
11.6. Moreover, considering the peculiar facts and
circumstances of the case, when the suit is of the year 1983
and this Court having already admitted the matter at the first
instance when filed in the year 2015, while issuing rule and
granting interim relief in favour of the petitioners, and in view
of the aforesaid conclusion, I am of the view that an appeal
from order under Order 43, Rule 1(k) of the CPC would not be
an effective alternative remedy available to the petitioners to
question legality of the impugned order passed by the Trial
Court.
Page 24 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
11.7. Thus, the decision of the Hon’ble Supreme Court of
India in the case of Mohamed Ali (Supra), relied upon by
learned Senior Advocate Mr. Joshi, would not be helpful to
him. Point No.I answered accordingly.
POINT NO.II
12. Before adverting to the issue germane in the matter and
answered it, first of all, I would like to refer few decisions of
Hon’ble Supreme Court of India which would have bearing on
the issue germane in the matter.
13. First in a row, in the case of Om Prakash Gupta (supra),
wherein Hon’ble Supreme Court of India held thus:-
“23. We find it difficult to agree with such reasoning. When an
application praying for substitution had been made, then, even
assuming that it does not have an explicit prayer for setting aside
the abatement, such prayer could be read as inherent in the
prayer for substitution in the interest of justice. We draw
inspiration for such a conclusion, having read the decision in Mithailal
Dalsangar Singh v. Annabai Devram Kini, 2003 10 SCC 691. This
Court reiterated the need for a justice-oriented approach in such
matters. Inter alia, it was held that prayer to bring on record
heir(s)/legal representative(s) can also be construed as a prayer for
setting aside the abatement. The relevant passage reads as under:
“8. Inasmuch as the abatement results in denial of
hearing on the merits of the case, the provision of
abatement has to be construed strictly. On the other
hand, the prayer for setting aside an abatement and thePage 25 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
dismissal consequent upon an abatement, have to be
considered liberally. A simple prayer for bringing the
legal representatives on record without specifically
praying for setting aside of an abatement may in
substance be construed as a prayer for setting aside
the abatement. So also a prayer for setting aside
abatement as regards one of the plaintiffs can be
construed as a prayer for setting aside the abatement of
the suit in its entirety. Abatement of suit for failure to
move an application for bringing the legal
representatives on record within the prescribed
period of limitation is automatic and a specific order
dismissing the suit as abated is not called for. Once
the suit has abated as a matter of law, though there may
not have been passed on record a specific order
dismissing the suit as abated, yet the legal
representatives proposing to be brought on record or any
other applicant proposing to bring the legal
representatives of the deceased party on record would
seek the setting aside of an abatement. A prayer for
bringing the legal representatives on record, if
allowed, would have the effect of setting aside the
abatement as the relief of setting aside abatement
though not asked for in so many words is in effect
being actually asked for and is necessarily implied.
Too technical or pedantic an approach in such cases is
not called for.
9. The courts have to adopt a justice-oriented
approach dictated by the uppermost consideration
that ordinarily a litigant ought not to be denied an
opportunity of having a lis determined on merits
unless he has, by gross negligence, deliberate
inaction or something akin to misconduct,
disentitled himself from seeking the indulgence of
the court. The opinion of the trial Judge allowing a
prayer for setting aside abatement and his finding on the
question of availability of ‘sufficient cause’ within the
meaning of sub-rule (2) of Rule 9 of Order 22 and of
Section 5 of the Limitation Act, 1963 deserves to be
given weight, and once arrived at would not normally be
interfered with by superior jurisdiction.
10. In the present case, such an approach adopted by
the Division Bench verges on too fine a technicality and
results in injustice being done………….”
(emphasis supplied)
Page 26 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
14. It would also be apt to place reliance upon a decision of
the Hon’ble Supreme Court delivered as far as back in the
year, 2010, in the case of Bhagmal and Others vs. Kunwar Lal
and others, reported in (2010) 12 SCC 159, wherein it was
held thus:-
“12. It is to be seen here that the question of delay was completely
interlinked with the merits of the matter. The appellant-defendants
had clearly pleaded that they did not earlier come to the court on
account of the fact that they did not know about the order passed
by the court proceeding ex parte and also the ex parte decree
which was passed. It was further clearly pleaded that they came
to know about the decree when they were served with the
execution notice. This was nothing, but a justification made
by the appellant-defendants for making Order 9 Rule 13
application at the time when it was actually made. This was
also a valid explanation of the delay. The question of filing Order
9 Rule 13 application was, in our opinion, rightly considered by the
appellate court on merits and the appellate court was absolutely
right in coming to the conclusion that the appellant-defendants
were fully justified in filing the application under Order 9 Rule 13
CPC at the time when they actually filed it and the delay in filing
the application was also fully explained on account of the fact that
they never knew about the decree and the orders starting the ex
parte proceedings against them. If this was so, the Court had
actually considered the reasons for the delay also. Under such
circumstances, the High Court should not have taken the
hyper technical view that no separate application was filed
under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all
the ingredients of the application for condonation of delay in
making that application. Procedure is after all handmaid of
justice……………. ”
(emphasis supplied)
14.1. Even in near past also, on 20th December 2024, the
Page 27 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
Hon’ble Supreme Court again reiterated the aforesaid principle,
in case of Dwarika Prasad (D), Thr. Lrs. vs. Prithviraj Singh
reported in 2024 SCC OnLine SC 3828, arising out of Special
Leave Petition (C) No. 11259 of 2022, wherein paras 9, 11,
and 12, held thus:-
“9. We have heard learned counsel for the appellant and perused
the record. We are of the opinion that the High Court has erred in
upholding the order of the Additional District Judge. The Trial Court
had rightly allowed the restoration application filed by the Appellant
under Order IX Rule 13 of CPC. It is well settled that Courts should
not shut out cases on mere technicalities but rather afford
opportunity to both sides and thrash out the matter on merits.
Further, we cannot let the party suffer due to negligent or fault
committed by their counsel. This principle has been enunciated by
this court in the case of Rafiq v. Munshilal1, quoted as follows:
“3. The disturbing feature of the case is that under our
present adversary legal system where the parties
generally appear through their advocates, the obligation of
the parties is to select his advocate, brief him, pay the fees
demanded by him and then trust the learned Advocate to
do the rest of the things. The party may be a villager or
may belong to a rural area and may have no knowledge of
the court’s procedure. After engaging a lawyer, the party
may remain supremely confident that the lawyer will look
after his interest. At the time of the hearing of the appeal,
the personal appearance of the party is not only not
required but hardly useful. Therefore, the party having
done everything in his power to effectively participate in
the proceedings can rest assured that he has neither to go
to the High Court to inquire as to what is happening in the
High Court with regard to his appeal nor is he to act as a
watchdog of the advocate that the latter appears in the
matter when it is listed. It is no part of his job. Mr A.K.
Sanghi stated that a practice has grown up in the High
Court of Allahabad amongst the lawyers that they remain
absent when they do not like a particular Bench. Maybe,
we do not know, he is better informed in this matter.
Ignorance in this behalf is our bliss. Even if we do not putPage 28 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
our seal of imprimatur on the alleged practice by
dismissing this matter which may discourage such a
tendency, would it not bring justice delivery system into
disrepute. What is the fault of the party who having done
everything in his power expected of him would suffer
because of the default of his advocate. If we reject this
appeal, as Mr A.K. Sanghi invited us to do, the only one
who would suffer would not be the lawyer who did not
appear but the party whose interest he represented. The
problem that agitates us is whether it is proper that the
party should suffer for the inaction, deliberate omission, or
misdemeanour of his agent. The answer obviously is in
the negative. Maybe that the learned Advocate absented
himself deliberately or intentionally. We have no material
for ascertaining that aspect of the matter. We say nothing
more on that aspect of the matter. However, we cannot be
a party to an innocent party suffering injustice merely
because his chosen advocate defaulted. Therefore, we
allow this appeal, set aside the order of the High Court
both dismissing the appeal and refusing to recall that
order…..”
11. The Appellant has relied upon the following judgments in
support of his submissions. In Bhagmal v. Kunwar Lal this Court
held as follows;
“12. It is to be seen here that the question of delay was
completely interlinked with the merits of the matter. The
appellant-defendants had clearly pleaded that they did not
earlier come to the court on account of the fact that they
did not know about the order passed by the court
proceeding ex parte and also the ex parte decree which
was passed. It was further clearly pleaded that they came
to know about the decree when they were served with the
execution notice. This was nothing, but a justification
made by the appellant-defendants for making Order 9
Rule 13 application at the time when it was actually made.
This was also a valid explanation of the delay. The
question of filing Order 9 Rule 13 application was, in our
opinion, rightly considered by the appellate court on merits
and the appellate court was absolutely right in coming to
the conclusion that the appellant-defendants were fully
justified in filing the application under Order 9 Rule 13
CPC at the time when they actually filed it and the delay in
filing the application was also fully explained on account of
the fact that they never knew about the decree and the
orders starting the ex parte proceedings against them. If
this was so, the Court had actually considered the reasons
Page 29 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
for the delay also. Under such circumstances, the High
Court should not have taken the hypertechnical view that
no separate application was filed under Section 5.
13. The application under Order 9 Rule 13 CPC itself had
all the ingredients of the application for condonation of
delay in making that application. Procedure is after all
handmaid of justice.”
12. From the above cases, it is clear that there was no need to
file a separate application for condonation of delay in the
present case as well. The High Court has erred in taking a
hyper technical view and concluding that there was violation
of mandatory provision of law. Endorsing such a view would
effectively mean ignoring the purpose of judicial procedure. The
procedure cannot stand in the way of achieving just and fair
outcome. In the present case, the Appellant acted bona fide and
diligently. His conduct does not violate any rule of law.”
(emphasis supplied)
15. It is also apposite to refer and rely upon the decision of
the Hon’ble Supreme Court in the case of a decision in case of
Banwarilal vs. Balbir Singh reported in (2016) 1 SCC 607,
wherein, it has been held thus:-
“8. Since no steps were taken to bring on record the legal
representatives of late Banwari Lal either in the first appeal or in
the second appeal, the appellants have filed CM No. 1998 of 2012
(under Order 1 Rule 10 CPC read with Section 151 CPC) to
implead (i) Shakuntala; (ii) Gaurav; (iii) Rachna; and (iv) Manju.
Civil Procedure Code Order 22 stipulates the manner in which the
legal representatives of the plaintiffs or the defendants ought to be
brought on record. The prescribed procedure cannot be
circumvented by filing application under Order 1 Rule 10 CPC read
with Section 151 CPC. However, in our view, it would be unjust to
non-suit the appellants on the ground of technicalities.
Page 30 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
9. Provisions of Order 22 CPC are not penal in nature. It is a
rule of procedure and substantial rights of the parties cannot
be defeated by pedantic approach by observing strict
adherence to the procedural aspects of law. In Sardar Amarjit
Singh Kalra v. Pramod Gupta [(2003) 3 SCC 272] , a five-Judge
Bench of this Court held as under : (SCC pp. 300-01, para 26)“26. Laws of procedure are meant to regulate
effectively, assist and aid the object of doing
substantial and real justice and not to foreclose
even an adjudication on merits of substantial rights
of citizen under personal, property and other laws.
Procedure has always been viewed as the handmaid
of justice and not meant to hamper the cause of
justice or sanctify miscarriage of justice. A careful
reading of the provisions contained in Order 22 CPC as
well as the subsequent amendments thereto would lend
credit and support to the view that they were devised to
ensure their continuation and culmination in an effective
adjudication and not to retard the further progress of the
proceedings and thereby non-suit the others similarly
placed as long as their distinct and independent rights to
property or any claim remain intact and not lost forever
due to the death of one or the other in the proceedings.
The provisions contained in Order 22 are not to be
construed as a rigid matter of principle but must
ever be viewed as a flexible tool of convenience in
the administration of justice. The fact that the khata
was said to be joint is of no relevance, as long as each
one of them had their own independent, distinct and
separate shares in the property as found separately
indicated in the jamabandi itself of the shares of each of
them distinctly. We are also of the view that the High
Court [Amarjit Singh v. Pramod Gupta, 1991 SCC
OnLine Del 131 : (1991) 20 DRJ 337] should have, on
the very perception it had on the question of
abatement, allowed the applications for
impleadment even dehors the cause for the delay in
filing the applications keeping in view the serious
manner in which it would otherwise jeopardize an
effective adjudication on merits, the rights of the
other remaining appellants for no fault of theirs.
Interests of justice would have been better served
had the High Court adopted a positive and
constructive approach than merely scuttled the
whole process to foreclose an adjudication of thePage 31 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
claims of others on merits. The rejection by the High
Court of the applications to set aside abatement,
condonation and bringing on record the legal
representatives does not appear, on the peculiar nature
of the case, to be a just or reasonable exercise of the
Court’s power or in conformity with the avowed object of
the Court to do real, effective and substantial justice.”
(emphasis supplied)
10. In Sital Prasad Saxena v. Union of India [(1985) 1 SCC
163] , it was observed that the rules of procedure under Order
22 CPC are designed to advance justice and should be so
interpreted as not to make them penal statutes for punishing
erring parties. On sufficient cause, delay in bringing the legal
representatives of the deceased party on record should be
condoned. Procedure is meant only to facilitate the
administration of justice and not to defeat the same. The
dismissal of the second appeal by the High Court does not
constitute a sound and reasonable exercise of its powers and the
impugned order [Banwari Lal v. Balbir Singh, 2013 SCC OnLine
Del 6406] cannot be sustained.”
(emphasis supplied)
16. At this stage, it would also be apposite to refer and rely
upon pertinent observations made by the Hon’ble Supreme
Court of India in the case of Bhagvathy Devaswom v. Bhargavi
Amma [(2008) 8 SCC 321], which is also referred to in the
case of Om Prakash Gupta (Supra), read thus:-
“13. The principles applicable in considering applications for
setting aside abatement may thus be summarised as follows:
(i) The words ‘sufficient cause for not making the application
within the period of limitation’ should be understood and applied
in a reasonable, pragmatic, practical and liberal manner,Page 32 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
depending upon the facts and circumstances of the case, and
the type of case. The words ‘sufficient cause’ in Section 5 of the
Limitation Act should receive a liberal construction so as to
advance substantial justice, when the delay is not on account of
any dilatory tactics, want of bona fides, deliberate inaction or
negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the
courts are more liberal with reference to applications for setting
aside abatement, than other cases. While the court will have to
keep in view that a valuable right accrues to the legal representatives
of the deceased respondent when the appeal abates, it will not punish
an appellant with foreclosure of the appeal, for unintended lapses.
The courts tend to set aside abatement and decide the matter on
merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length
of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends
on the nature of application and facts and circumstances of the case.
For example, courts view delays in making applications in a pending
appeal more leniently than delays in the institution of an appeal. The
courts view applications relating to lawyer’s lapses more leniently
than applications relating to litigant’s lapses. The classic example is
the difference in approach of courts to applications for condonation of
delay in filing an appeal and applications for condonation of delay in
refiling the appeal after rectification of defects.
(v.) Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant
only when something required to be done by him, is not done. When
nothing is required to be done, courts do not expect the appellant to
be diligent. Where an appeal is admitted by the High Court and is not
expected to be listed for final hearing for a few years, an appellant is
not expected to visit the court or his lawyer every few weeks to
ascertain the position nor keep checking whether the contesting
respondent is alive. He merely awaits the call or information from his
counsel about the listing of the appeal.”
(emphasis supplied in original)
(emphasis supplied)
17. Last but not least, a full bench decision of Hon’ble
Supreme Court of India Sangram Singh versus Election
Page 33 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
Tribunal Kotah reported in AIR 1955 (SC) 425 wherein held
thus:-
“[16] Now a code of procedure must be regarded as such. It is
‘procedure’, something, designed to facilitate justice and further its
ends: not a penal enactment for punishment and penalties; not a thing
designed to trip people up. Too technical a construction of sections
that leaves no room for reasonable elasticity of interpretation should
therefore be guarded against (provided always that justice is done to
‘both’ sides) lest the very means designed for the furtherance of justice
be used to frustrate it.
[17] Next, there must be ever present to the mind the fact that our
laws of procedure are grounded on a principle of natural justice which
requires that men should not be condemned unheard, that decisions
should not be reached behind their backs, that proceedings that affect
their lives and should not continue in their absence and that they
should not be precluded from participating in them. Of course, there
must be exceptions and where they are clearly defined they must be
given effect to. But taken by and large, and subject to that proviso, our
laws of procedure should be construed, wherever that is reasonably
possible, in the light of that principle.
(emphasis supplied)
17. So, time and again, it is reminded by Hon’ble Supreme
Court in its various decisions so also in clear terms stated by
the Constitution Bench of Hon’ble Supreme Court in a case of
Sardar Amarjit Singh Kalra (supra) that provision of Order 22
of CPC is not a rigid matter of procedure but flexible tool in
the administration of justice. Having so observed that such
Page 34 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
provision is neither penal in nature not punish erring party but
are designed for advancement of justice. Such legal aspect
needs to be remembered by the Trial Court when adjudicate an
application filed under Order 22 of CPC.
18. The Hon’ble Supreme Court has reminded all courts that
while adjudicating an application, be it filed seeking
condonation of delay or setting aside of abatement, a broad,
justice-oriented approach is required to be adopted by the
court, whereby, having condoned such delay and set aside the
abatement, the legal heirs of a deceased litigant are brought
on record of the proceeding so they can pursue their legal
right to sue which has survived in their favour, and ultimately
the Trial Court can decide lis on its merits.
19. Keeping the above referred decisions and also keeping in
mind ratio of aforesaid decisions, I would like to decide the
main issue germane in the matter.
20. Now, adverting back to the issue germane in the matter,
the facts, which are observed hereinabove, are not in dispute.
Page 35 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
The suit came to be filed by two individuals who died one
after another during the pendency of the appeal and the suit,
respectively. It remains undisputed that original plaintiff No. 1
having died on 05.11.1999, one of his legal heirs, i.e.,
petitioner No. 1.3 herein, was brought before the Appellate
Court in the Regular Civil Appeal No. 27 of 2006 filed by
original plaintiff No. 2. The application so filed by petitioner
No. 1.3 below Exhibit 11 in Regular Civil Appeal No. 27 of
2006 would clearly indicate that he wanted to be joined as a
legal heir of original plaintiff No. 1, who was joined as
respondent No. 14 in the appeal. The proposed amendment
sought for in the appeal by way of filing the aforesaid
application would also indicate such fact. Even the prayer
Clause i.e., para 5(A) of such application would also confirm
that petitioner No. 1.3 herein requested the Appellate Court to
allow him to join as appellant No. 2, being a legal heir of
original plaintiff No. 1. Further, cause-title of judgement/decree
dated 19.06.2012 passed by Appellate Court would also suggest
that petitioner No.1.3 herein described as Appellant No.2 –
Page 36 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
child of original plaintiff No.1. In view of said, there is no
substance in the argument of learned senior advocate Mr. Joshi
that petitioner No. 1.3 was not joined as legal heirs of original
plaintiff No.1 but joined in his individual capacity.
21. Once such application came to be allowed by the Appellate
Court vide its order dated 06.07.2006, petitioner No. 1.3 was
brought on the record of the said appeal and, as the case may
be, of the suit. This aspect of the case was completely lost
sight by Trial Court when adjudicated impugned application.
22. Such issue is no longer remained res integra, having
already been decided by the Hon’ble Supreme Court of India in
the case of Rangubai (Supra), wherein it held thus:-
“8. It is said that the final decree proceeding is a stage in the
suit and the appeal is another stage in the suit and, therefore,
the bringing on record of the legal representatives in one stage
of the suit will enure for all stages of the suit including the
appeal. This conclusion, the argument proceeds, flows from the
reasoning of the judgment of the Judicial Committee in Brij Indar
Singh v. Kanshi Ram [(1917) LR 44 IA 218, 228] . The relevant
facts of that case were these : Pending a suit an application was
made for directing a party to produce certain books and that was
ordered by the District Judge. Thereafter an application was made
to the Chief Court to revise the order of the District Judge. Pending
the revision the plaintiff and the 2nd defendant died. Within the
prescribed time their legal representatives were brought on recordPage 37 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
in the revision. Subsequently that revision was dismissed as
withdrawn. The legal representatives of the plaintiff and the 2nd
defendant were not brought on record in the suit within the time
prescribed. The question was whether the suit had abated. The
Judicial Committee held that the suit did not abate and the following
reasons were given for that view:
“The plaintiff as representative of the original plaintiff,
and the defendant’s representatives of Joti Lal, had
been introduced in the Chief Court. No doubt that was
only done in the course of an interlocutory application as
to the production of books. But the introduction of a
plaintiff or a defendant for one stage of a suit is an
introduction for all stages, and the prayer, which seems
to have been made ab majorem cautelam, by the
plaintiff, in his application to the District Judge Prenter
under Section 365, was superfluous and of no effect.
Coates, the judgment debtor, was only formally called,
and the non-presence of his representatives would
afford no ground for the abatement of the suit.”
This judgment is an authority for the position that if the legal
representatives of a deceased plaintiff or defendant are
brought on record in an appeal or revision from an order made
in the suit, that would enure for all subsequent stages of the
suit. The same principle was sought to be extended in a Madras
decision to a cross appeal : see Shankaranaraina Saralaya v.
Laxmi Hengsu [AIR 1931 Mad 277, 278] , There, two appeals were
independently filed against the decree in a suit — one was filed by
the plaintiff and the other by the defendant. The plaintiff-appellant
died and in the appeal filed by him his legal representatives were
brought on record in time, whereas it was not so done in the
appeal filed by the defendant-respondent. It was argued that by
reason of the fact that the legal representatives of the plaintiff were
brought on record in the appeal filed by him there was no
abatement in the appeal filed by the defendant. The Court
negatived the contention and when the aforesaid decision of the
Privy Council was cited, it was distinguished on the following
grounds:
“Their Lordships have held that the introduction of a
plaintiff or a defendant for one stage of a suit is an
introduction for all stages. When the subject-matter of
the interlocutory application was pending in the
appellate court it was deemed to be one stage of the
suit and therefore there was no need to put in a fresh
application at a further stage of the suit when it came onPage 38 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
for trial before the first Court. Can it be said in the
present case that what was done in one appeal could
enure for the benefit of another appeal unless the latter
appeal can be deemed to be a continuation or a further
stage of the appeal in which the legal representatives
were brought on record? I am constrained to say that it
is difficult to extend the principle of the decision of the
Privy Council to the facts of this case.”
This decision accepts the principle laid down by the Privy Council
but distinguishes the case before it on the ground that the
interlocutory appeal is not a continuation or a further stage of the
appeal in which the legal representatives were brought on record.
Many other decisions were cited at the Bar, but they only support
the position that in bringing the legal representatives of a deceased
party on record in one appeal will not enure for the benefit of a
cross appeal.
9. Let us now consider the question on principle. A combined
reading of Order XXII, Rules 3, 4 and 11, of the Code of Civil
Procedure shows that the doctrine of abatement applies equally to
a suit as well as to an appeal. In the application of the said Rules 3
and 4 to an appeal, instead of “plaintiff” and “defendant”,
“appellant” and “respondent” have to be read in those rules. Prima
facie, therefore, if a respondent dies and his legal representatives
are not brought on record within the prescribed time, the appeal
abates as against the respondent under Rule 4, read with Rule 11,
of Order XXII of the Code of Civil Procedure. But there is another
principle recognized by the Judicial Committee in the aforesaid
decision which softens the rigour of this rule. The said principle is
that if the legal representatives are brought on record within
the prescribed time at one stage of the suit, it will enure for
the benefit of all the subsequent stages of the suit. The
application of this principle to different situations will help to answer
the problem presented in the present case. (1) A filed a suit against
B for the recovery of possession and mesne profits. After the
issues were framed, B died. At the stage of an interlocutory
application for production of documents, the legal representatives
of B were brought on record within the time prescribed. The order
bringing them on record would enure for the benefit of the entire
suit. (2) The suit was decreed and an appeal was filed in the High
Court and was pending therein. The defendant died and his legal
representatives were brought on record. The suit was
subsequently remanded to the trial court. The order bringing the
legal representatives on record in the appeal would enure for the
further stages of the suit. (3) An appeal was filed against an
interlocutory order made in a suit. Pending the appeal the
Page 39 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
defendant died and his legal representatives were brought on
record. The appeal was dismissed. The appeal being a
continuation or a stage of the suit, the order bringing the legal
representatives on record would enure for the subsequent
stages of the suit. This would be so whether in the appeal the trial
court’s order was confirmed, modified or reversed. In the above 3
illustrations one fact is common, namely, the order bringing on
record the legal representatives was made at one stage of the suit,
be it in the suit or in an appeal against the interlocutory order or
final order made in the suit, for an appeal is only a continuation of
the suit. Whether the appellate order confirms that of the first
Court, modifies or reverses it, it replaces or substitutes the
order appealed against. It takes its place in the suit and
becomes a part of it. It is as it were the suit was brought to the
appellate court at one stage and the orders made therein were
made in the suit itself. Therefore, that order enures for the
subsequent stages of the suit.”
(emphasis supplied)
23. At this stage, it is also apt to rely upon the decision of
Hon’ble Supreme Court in the case of Mithailal Dalsangar
Singh (Supra), wherein it has been held thus:
“11.There is yet another aspect of the matter. As we have already
noticed, the appeal against the order of ad interim injunction passed
by the learned trial Judge was pending before the Division Bench.
Therein the defendants had themselves moved an application for
bringing on record the legal representatives of the deceased
plaintiff, that is, the respondent in their appeal. The legal
representatives being brought on record at any stage of the
proceedings enures for the benefit of the entire proceedings. The
prayer made by the defendants in their appeal for bringing on
record the legal representatives of the deceased plaintiff-
respondent in appeal was not opposed by the legal representatives
or by any of the co-plaintiffs. Rather the prayer was virtually
conceded to by the legal representatives themselves moving an
application for being brought on record in the suit in place of the
deceased plaintiff. In our opinion, the application made by the
defendant-appellants in the appeal once allowed would havePage 40 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATIONC/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
the effect of bringing the legal representatives on record, not
only in the appeal but also in the suit. All that would remain to
be done is the ministerial act of correcting the index of the
parties by the applicants in appeal and then in the suit. In view
of the defendants themselves having sought for impleadment of the
legal representatives in the appeal the delay in moving the
application in the suit by the legal representatives, being
subsequent in point of time, became meaningless.”
(emphasis supplied)
24. When one of the legal heirs of plaintiff No. 1 was brought
on record of the appeal, and at the relevant point of time,
none of the defendants had objected to such substitution of
legal heirs of original plaintiff No. 1 on record, such
substitution of legal heirs on record in the appeal would enure
to the further stages of the suit, when the matter was
remanded back to the Trial Court.
25. As discussed herein above, this legal aspect has been
completely lost sight of by the Trial Court when it adjudicated
the impugned application filed below Exhibit 190. If one of
legal heirs of original plaintiff No.1 was already on record of
the suit, by no stretch of imagination, Trial Court could have
observed that “Record itself suggest that son of plaintiff No.1
was party in the appeal, despite this fact, he has not made
Page 41 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
any application in this suit. Such big lacuna or negligence
cannot be ignored.” This itself suggests that impugned order
is erroneous, perverse and contrary to settled principle of law.
26. Likewise, the Trial Court has erroneously observed that no
separate applications seeking condonation of delay and so also
praying for setting aside of the abatement of the suit being
filed, which according to Trial Court, sine qua none to
entertain the impugned application. This appears to be fallacy
in law requires outright rejection.
27. It is now a well-settled legal position that in a case like
the present one, when any application seeking substitution of
legal heirs of a deceased litigant is filed without filing a
separate delay application and or application seeking setting
aside abatement, the Trial Court should not have rejected the
application seeking substitution of legal heirs of the deceased
litigant. Such a hyper-technical approach of the Court that in
the absence of separate delay/setting aside abatement
applications, such application cannot be entertained is not only
Page 42 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
criticized but not approved by the Hon’ble Apex Court.
28. Thus, in view of the aforesaid authoritative pronouncement
of law by the Hon’ble Supreme Court in its number of
decisions, having so applied to the issue germane in the
present writ application, when the petitioners have already
requested the Trial Court to consider their request to bring
them on record of the suit as legal heirs/legal representatives
of the original plaintiffs, along with seeking condonation of
delay and setting aside of the abatement of the suit, the Trial
Court taking very hyper technical approached not accepted
such request, committed a jurisdictional error. According to
this Court, it egregiously erred in law by observing that there
is no separate delay application, so also no application seeking
setting aside of the abatement, filed by the petitioners having
found them negligent. True, there is some lapses on the part
of petitioners having not filed impugned application in time
but is it too fatal that they should not be allowed to bring on
record of the suit? According to me, answer is empathetic No.
Page 43 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
29. The Trial Court has also taken too technical an
approach while rejecting the impugned application by
observing that there is a delay of 16 years in filing such
application by the legal heirs of the deceased original plaintiff
No. 1. The Trial Court appears to have lost sight of one
crucial fact as observed and discussed herein above that one of
the legal representatives of plaintiff No. 1 was already
substituted in the suit itself, as having been brought in the
aforesaid regular civil appeal. When one of the legal
representatives of plaintiff No. 1 was already available on the
record of the suit, if the other legal heirs of original plaintiff
No. 1 requested the Trial Court to allow them to join in the
suit, there was no reason, much less any cogent and
convincing reason, for the Trial Court not to accept such a
request citing 16 years delay.
30. Likewise, the Trial Court has also observed that in the
absence of the death certificate of plaintiff No. 2, it cannot be
presumed that plaintiff No. 2 died. The Trial Court could have
directed applicants to submit a copy of death certificate of
Page 44 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
plaintiff No.2 on record especially when there is no serious
dispute about death of plaintiff No.2 raised by defendants.
Nonetheless, having so produced such death certificate of
plaintiff No.2 on record of this writ application and its
authenticity is not in dispute, without being too technical, this
Court would consider it and allow applicants to cure such
defect which otherwise curable. At the same time, when this
Court inclined to accept prayers of the applicants, when during
course of his submissions, Learned Senior Advocate Mr. Joshi
requested this Court to keep the issue left open to be decided
by Trial Court in regards to any right accrued in favour of
petitioner No. 2.1 on the strength of the alleged registered Will
of plaintiff No. 2 in his favour and his entitlement to receive
any benefit on the strength of such Will in the suit. So, in
view of such request, the aforesaid issue is left open to be
decided by Trial Court while adjudicating the suit on merit. It
is open for respective parties to raise their respective
submission in this regard which shall be decided by Trial Court
in accordance with law.
Page 45 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
31. Having considered the ratio of the above referred decisions
of the Hon’ble Supreme Court that the Court should consider a
liberal approach while adjudicating such type of application
seeking either condonation of delay or setting aside the
abatement of the suit, in the absence of any mala fide or any
gross negligence on the part of the applicants-petitioners in not
filing the impugned application in time, according to my view,
such an impugned application requires to be allowed, whereby
the petitioners are required to be brought on record of the
suit.
32. The Trial Court appears to have completely lost sight such
settled legal position of law laid down by the Hon’ble Supreme
Court of India while adjudicating the impugned application.
33. It is true that when petitioner No. 1.3 was substituted
himself on the record of the appeal and the suit, the other
legal representatives of plaintiff No. 1 could have been brought
on record. At the same time, they are not having been brought
on record at the given point of time would not be so fatal,
Page 46 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
and in no case, it would not cause any prejudice to the
interest of the defendants if the other legal heirs of plaintiff
No. 1 are now allowed to be brought on record of the suit. It
is so mentioned in the impugned application that the appeal
and the suit proceedings were looked after by original plaintiff
No. 2, and in that view of the matter, all legal representatives
of plaintiff No. 1 if want to come on record, there is no harm
if such request would have been allowed by Trial Court by
exercised its discretion in favour of applicants. As such
according to my view, applicants made out sufficient cause
when filed impugned application thereby, Trial Court could
have condoned delay, set aside abatement and accordingly,
substituted petitioners on record of the suit being legal
heirs/representative of original plaintiffs. If such recourse
would have been adopted, it would in consonance with
principle of substantial justice rather defeat it by rejecting
impugned application.
34. It is further averred in the application that after the sad
demise of original plaintiff No. 2 on 29.05.2014, when they
Page 47 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
received a phone call from the office of the advocate engaged
by the original plaintiffs on 23.07.2015, having contacted the
lawyer immediately thereafter, they filed the impugned
application on 30.07.2015. It is true that such application was
supported by the affidavit of only petitioner No. 2.1, but
considering the fact that the rule of procedure is the handmaid
of justice, and in that view of the matter, when said fact set
out/mentioned in impugned application having common fact
for both which can be culled out by reading the impugned
application, which would constitute sufficient cause taking
liberal approach in the matter, thus in that view of the matter,
this Court would not like to entertain such a hyper-technical
plea that in absence of separate affidavit of legal heirs of
plaintiff No.1, impugned application could not have been
entertained.
35. More so, after going through the reply filed by defendant
No. 5 below Exhibit 194 before the Trial Court, which was
made available by the learned advocate for respondent No. 5
to this Court, it would not indicate that such an objection was
Page 48 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
even raised before the Trial Court. So, in that view of the
matter, having raised such an objection for first time before
this Court would not entitled the defendants to convince this
Court not to entertain the present application.
36. Thus, such an objection raised by the
defendants/respondents that the legal heirs of original plaintiff
No. 1 were also required to file a separate affidavit and having
not done so while filing impugned application, would be an
inherent incurable defect, requires rejection.
37. At last, it is also required to be observed that during the
course of arguments, learned Senior Advocate Mr. Joshi would
not in a position to show any serious prejudice would cause to
the respondents-defendants if the impugned application came to
be allowed. Nonetheless, his entire thrust of arguments
revolved around procedural lapses and so also peripheral
around technicalities which otherwise either curable one and/or
not sustainable in law. Thus, none of his submissions
impressed this Court.
Page 49 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
38. As observed hereinabove, while narrating facts of the case,
in the first round, though suit was dismissed by Trial Court
but issue Nos. 1 to 6 were answered in favour of plaintiffs and
whereas issue Nos.7 to 10 are answered in negative against
defendants but surprisingly, the Trial Court did not grant relief
in favour of original plaintiffs by answering issue No.11 against
plaintiffs. So, in that view of the matter, the Appellate Court
had remanded the matter back to the Trial Court to re-decide
issue Nos.7 and 11 afresh, permitting the parties to lead their
evidence to prove such issues. The issue No.7 appears to be an
issue with regard to non-joinder of necessary party and issue
No.11 regards to entitlement of plaintiffs to get relief as
prayed in the suit. Thus, if applicants would not allow to be
brought on record of the suit, rather it causes serious prejudice
to their interest inasmuch as original plaintiffs during their life
time, already led evidence in the suit and now, the scope of
adjudication of suit is only confined to the aforesaid issues. In
light of aforesaid, according to this Court, there would not be
any serious prejudice caused to the defendants if the impugned
Page 50 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
application be allowed rather it definitely causes serious
prejudice to the interest of petitioners / applicants.
39. According to my view, while adjudicating such type of
application, the endeavour should always be made by the Trial
Court thereby, the legal heirs/representatives of the deceased
litigant can be brought on record and ultimately the lis
between the parties be decided on its merits rather than being
defeated on technicalities which is antithesis to justice oriented
approach. If the case is made out thereby opposite side shows
any mala fide intention, dilatory tactics used, gross negligence
of applicant while filing such type of application and or any
serious prejudice caused to other side, in all other cases, to
advance justice to the party, such type of application needs to
be allowed by Trial Court by positively exercised its discretion.
None of such reasons brought to the notice of this Court by
defendants.
40. Accordingly, I am in complete agreement with submissions
so made by learned senior advocate Mr. Vyas appearing for the
Page 51 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
petitioners.
41. Once impugned order passed below Exhibit 190 requires to
be quashed, as a consequence, impugned order passed below
Exhibit 1 would not survived, also requires to be quashed. For
which, considering peculiar facts and circumstance of this case,
keeping in mind the fact that suit is of year 1983, this Court
would not like to relegate petitioners to challenge impugned
order passed below Exhibit 1 by separate appeal. Such recourse
would not only increase the burden of Appellate Court but not
a correct recourse to be adopted, at least by this Court.
42. In view of foregoing reasons, this Court is of the view that
impugned order suffers from jurisdictional error and approach
of the Trial Court is just opposite to what is settled position of
law. Thus, it requires to be interfered by this Court while
exercising its supervisory jurisdiction under Article 227 of the
Constitution of India. It needs to quash the impugned order as
its by now well settled that in a case of jurisdictional error
committed by Trial Court and so also to keep the Court within
its bound, such power vested with this Court requires to be
Page 52 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
exercised for ends of justice. [ See – Waryam Singhvs vs.
Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev
Mallick alias Bhudeb Mallick and Another vs. Ghoshal and
Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)]
43. When this Court has reached to the aforesaid conclusion,
the impugned order dated 01.10.2015 passed by the Trial Court
below Exhibit 190 in Regular Civil Suit No. 60 of 1983
requires to be interfered with by this Court, a fortiori, the
impugned order passed below Exhibit 1 in the suit requires to
be interfered as well by this Court. Point No.II is answered
accordingly.
CONCLUSION
44. In view of aforesaid reasons and considering above
peculiar facts and circumstance of the present case, the
impugned order dated 01.10.2015 passed by the Trial Court
below Exhibit 190 in Regular Civil Suit No. 60 of 1983 is not
an appealable order under Order 43 Rule 1 (k) of CPC as
impugned application is not considered strict sensu filed only
under Order 22 Rule 9 of CPC.
Page 53 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
44.1. Further, due to foregoing observations, discussions,
and reasons, I am of the view that the Trial Court has
egregiously erred in law, having erroneously and perversely
observed that the impugned application was not filed along
with a separate delay application and an application for setting
aside the abatement of the suit.
44.2. According to my view, when reached to the aforesaid
conclusion, having found the impugned orders erroneous,
perverse, and contrary to the settled legal position, the
impugned orders require to be interfered with by this Court
while exercising its power under Article 227 of the Constitution
of India. As such and for reasons assigned herein above, case
made out by applicants thereby, impugned application could
not have been rejected by Trial Court.
44.3. Thus, having so observed and concluded hereinabove,
the impugned order dated 01.10.2015 passed by the 4 th
Additional Senior Civil Judge, Ahmedabad (Rural), below
Exhibit 190 in Regular Civil Suit No. 60 of 1983 is hereby
Page 54 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
quashed and set aside. Consequently, the application filed
below Exhibit 190 is hereby allowed, whereby the petitioners-
applicants herein are directed to be brought on record of
aforesaid Regular Civil Suit No. 60 of 1983 as all the legal
heirs of original plaintiff No. 1 and the legal representative of
original plaintiff No. 2, respectively.
44.4. As a sequel, the impugned order dated 01.10.2015
passed below Exhibit 1 in Regular Civil Suit No. 60 of 1983 by
the 4th Additional Senior Civil Judge, Ahmedabad (Rural), is
also required to be quashed and set aside, which is hereby
quashed and set aside. Accordingly, aforesaid Regular Civil Suit
No. 60 of 1983 is restored back on its original file.
44.5. In view of the foregoing conclusion, the present writ
application is hereby allowed. Rule is made absolute
accordingly. No order as to costs. The Civil Application would
not survive and accordingly, disposed of.
44.6. The Trial Court should expedite the aforesaid suit as
instituted in year 1983. All concern should extend their co-
Page 55 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025
NEUTRAL CITATION
C/SCA/18589/2015 CAV JUDGMENT DATED: 19/08/2025
undefined
operation and support to the Trial Court thereby, the suit can
be decided by the Trial Court in accordance with law as early
as possible preferably on or before 30.09.2026.
Sd/-
(MAULIK J.SHELAT,J)
Page 56 of 56
Uploaded by MOHD MONIS(HC01900) on Tue Aug 19 2025 Downloaded on : Tue Aug 19 23:10:30 IST 2025