IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 1079 of 1987
with
CIVIL APPLICATION No.__ of 2000 (for delay)
and
CIVIL APPLICATION No.12109 of 2001
(for bringing heirs on record)
For Approval and Signature: sd/-
Hon'ble MR.JUSTICE B.J.SHETHNA
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
————————————————————–
PARSURAM GOVIND MULE
Versus
STATE OF GUJARAT
————————————————————–
Appearance:
1. Special Civil Application No. 1079 of 1987
MR RR MARSHALL for Petitioner No. 1
MR SP SEN, A.G.P. for Respondents No. 1-2
MR SUNIL K SHAH for Respondent No. 3
RULE SERVED for Respondent No. 4
————————————————————–
CORAM : MR.JUSTICE B.J.SHETHNA
Date of decision: 11/01/2002
ORAL JUDGEMENT
1.Shri Parsuram Govind Mule, original petitioner,
filed main writ petition i.e. Special Civil Application
No.1079 of 1987 and prayed that impugned order at
Annexure : F dated 14.7.1986 passed by the respondent
No.2 be quashed and set aside and he may be granted
relief of pension, gratuity and other benefits as per the
Government Resolution at Annexures : G, H & I.
2.Initially on 8.10.1987 the learned Single Judge
of this Court issued notice making it returnable on
12.11.1987 and on 26.12.1991 another learned Single Judge
of this Court simply admitted the matter by issuing
“Rule”. In response to the notice issued earlier on the
main petition reply Affidavit was filed by the
respondents opposing the petition and grant of interim
relief. It is contended in the reply by the respondent
that the petitioner retired on 21.8.1971 as work-charge
employee therefore he was neither in temporary
establishment nor permanent establishment. Therefore, he
was not entitled to get pension or gratuity.
3.During the pendency and final disposal of this
petition the sole petitioner died on 24.7.1993. On this
ground the above Civil Application lNo.12109 of 2001 came
to be filed by the applicant Shri Parshuram Govind Mule,
Sole legal heir of original petitioner Pramod Parshuram
Mule. The said Civil came to be filed in 2001 along with
the application for condonation of delay i.e. Civil
Application No.___ of 2001. Thus, the delay of about 7
years in filing Application for bringing legal heirs on
record was filed and the gross delay of 7 years sought to
be condoned on the ground …”The delay has occasioned
because the original heir had approached the advocate of
the petitioner and an application for bringing heir on
record was also prepared and affidavit has also been
sworn in the same. However, it seems either by oversight
the same was not filed or when it was filed it has been
misplaced in the office of the High Court and as a result
when the applicant contacted his advocate again and again
the papers were searched in the office of the High Court
and were not traceable in the High Court and hence this
application is filed. It is in this set of circumstances
the delay has occasioned in bringing heir on record.”
4.With the death of sole petitioner Shri Parshuram
Govind Mule in 1993 the petition stood abated and for
setting aside the abatement the legal heirs were required
to be brought on record at the earliest. The short
question involved in this case is as to whether after a
period of 7 years legal heir of the deceased original
petitioner can be allowed to be brought on record by
condoning the delay. Learned Counsel Shri Marshal for
the legal heir of the original petitioner deceased
Parshuram Mule submitted that though the application for
bringing heir on record was prepared and Affidavit was
also sworn, but through oversight the same could not be
filed as it was misplaced in the office of the High
Court. He submitted that the applicant contacted his
Advocate again then the papers were searched in the
office and when it was traceable in the office of the
High Court therefore the present application came to be
filed in 2001 for bringing legal heir on record. He,
therefore, submitted that the delay has been sufficiently
explained and therefore the same should be condoned and
the Civil Application for bringing legal heir of deceased
original petitioner be granted and the main petition be
heard on merit and decided.
5.There is no period of limitation for bringing
legal heir on record in writ petition but that does not
mean that the party can file petition after long long
period. 7 years delay is most unreasonable and such a
gross delay ordinarily cannot be condoned that too on the
ground stated in the Application. Except vague averments
no details have been given in the Application for
condonation of delay. It is very easy to say that
through oversight the application was not filed. That
was not the only ground on which the delay is sought to
be condoned. As stated above in Para : 1 of the
application for condonation of delay it is stated that
either through oversight the application could not be
filed or it was filed then it was misplaced in the office
of the High Court. Thus, it is clear that the applicant
himself is not sure as to whether the application was
filed or not and if it was filed then it was misplaced in
the office of the High Court. When it was misplaced
nothing has been stated. This type of lame excuse cannot
be accepted for condoning the delay. These are the
discretionary powers and therefore in such type of cases
such discretionary powers cannot be exercised in favour
of those persons who are sleeping over their rights for
years together.
6.In view of above discussion I am not inclined to
grant Civil Application for condonation of delay in
filing Civil Application No.12109 of 2001 for bringing
legal heir of the sole original deceased petitioner on
record. Accordingly the same is rejected. Once the said
Civil Application for condonation of delay is rejected
then Civil Application No.12109 of 2001 for bringing
legal heir on record has to be rejected and accordingly
it is rejected.
7.When this Court has not granted application for
bringing legal heir of deceased petitioner on record then
the main writ petition No.1079 of 1987 has to be
dismissed as abated on the death of the sole petitioner.
Accordingly all these matters are dismissed with no order
as to costs. Rule discharged.
sd/-
Date : January 11, 2002(B.J.Shethna, J.)
*sas*