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Amritlal V. Raichura Vs. Pattani Sidiq Ismail and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1305
AppellantAmritlal V. Raichura
RespondentPattani Sidiq Ismail and ors.
Excerpt:
- - 3 on record was filed on 17th april, 1982, which was clearly time barred. the proper course in a matter like this is that there should have been an application for condonation of delay in filing the application for bringing the heirs on record......should have been an application for condoning the delay. without the delay being condoned the learned judge could have not proceeded to pass the order allowing the application for bringing heirs on record.2. the aforesaid contentions of mr. takwani are quite justifiable. the proper course in a matter like this is that there should have been an application for condonation of delay in filing the application for bringing the heirs on record. after the delay was condoned the learned judge could have proceeded to deal with the application for bringing the heirs on record after all the parties concerned including the heirs of defendants no. 3 were served with the process and were given an opportunity to be heard. in this case there is neither an application for condonation of delay nor is.....
Judgment:

A.S. Qureshi, J.

1. This revision application is directed against the order dated 24-6-1982 passed by the learned Civil Judge, Junior Division Veraval, whereby an application by the plaintiff to bring the heir of defendant No. 3 on record was allowed. The contention raised by the present petitioner is that he ought to have been served with a notice of the application whereby the present petitioner who is the son and legal representative of the deceased defendant No. 3 to give him an opportunity to put up his contentions against the said application. Mr. C. K. Takwani, the learned Counsel for the petitioner, submits that the original defendant No. 3 who was the father of the present petitioner had died on 7th January, 1982 and that the plaintiff had filed the application for bringing the heir of defendant No. 3 on record was filed on 17th April, 1982, which was clearly time barred. Mr. Takwani submits that the impugned order of the learned Civil Judge is not tenable for two reasons. Firstly, according to him, no notice has been served on him and, therefore, he had no opportunity to object to this application being allowed. Secondly, as the application was filed after the limitation period for bringing heirs on record had expired there should have been an application for condoning the delay. Without the delay being condoned the learned Judge could have not proceeded to pass the order allowing the application for bringing heirs on record.

2. The aforesaid contentions of Mr. Takwani are quite justifiable. The proper course in a matter like this is that there should have been an application for condonation of delay in filing the application for bringing the heirs on record. After the delay was condoned the learned Judge could have proceeded to deal with the application for bringing the heirs on record after all the parties concerned including the heirs of defendants No. 3 were served with the process and were given an opportunity to be heard. In this case there is neither an application for condonation of delay nor is the heir of defendant No. 3 who is the present applicant given an opportunity to be heard. Therefore, the impugned order is on the face of it is untenable and, therefore, it is hereby set aside.

3. The learned trial Judge is directed to dispose of the application for condonation of delay, if any, is filed or may be filed hereafter by the plaintiff. After the condonation application is disposed of the learned Judge is directed to give an opportunity to the present petitioner to be heard as regards the plaintiffs application to bring him on record of this case as the heir of defendant No. 3.

4. Although the opponents Nos. 1, 2 and 3 are served with the process of the present revision application none of them have remained present before this Court either personally or through their advocates. The petition is allowed. The rule is made absolute with no order as to costs.


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