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CA/16975/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 16975 of 2010
=========================================
BHARATBHAI
RASIKLAL DALAL - Petitioner(s)
Versus
CHIMANBHAI
ISHWARDAS PATEL & 3 - Respondent(s)
=========================================
Appearance :
MR
YH MOTIRAMANI for
Petitioner(s) : 1, 1.2.1,1.2.2
None for Respondent(s) : 1,
3,
RULE NOT RECD BACK for Respondent(s) : 1.2.1, 1.2.2,
1.2.3,1.2.4 - 3,3.2.2 - 4.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 07/02/2011
ORAL
ORDER
1. Present
civil application has been filed for condonation of delay of 2647
days in filing the application for bringing the heirs of deceased
respondent no.3 on the grounds set out in the application. Learned
counsel Mr. Motiramani referred to the papers and also order passed
by this Court in Civil Application No. 9676 of 2008 (for bringing the
heirs on record) dated 23.03.2010 and submitted that the heirs of
deceased respondent No.3 had made an application without any
application for delay condonation which was withdrawn with a liberty
to file fresh application and therefore he did not move and wait for
necessary application being made. Learned Advocate Mr. Motiramani,
therefore, submitted that the present application may be allowed.
2. Learned
advocate Mr. Shah has resisted the application. However, he stated
that Civil Application No. 9676 of 2008 was withdrawn with a liberty
to file fresh application for bringing heirs on record along with
application for condonation of delay.
3. The
provisions of Rule 4 of Order 22 of Code of Civil Procedure provide
for bringing the heirs on record. It is for the petitioner to make
necessary application for bringing the heirs as per law within the
period. At the same time, even if the application is made by the
heirs of deceased respondent at their own, it is obligatory for the
petitioner to take necessary steps, which have admittedly not been
taken. However, the heirs of deceased respondent have also filed
earlier Civil Application No. 9676 of 2008 for bringing them on
record which was withdrawn as per order dated 23.03.2010 with a
liberty to file fresh application. Though it was obligatory for the
petitioner to take necessary steps, he has conveniently not taken the
steps. Even when the order was passed in Civil Application No. 9676
of 2008, the petitioner could have fairly conceded for condonation of
delay.
4. The
Court has also come across an order of this Court dated 17.04.2008 in
the present revision application where the steps have not been taken
which has been noted. This also reflects the attitude of the present
petitioner. However, considering the settled principle regarding
condonation of delay which was required to be considered liberally as
laid down by the Hon’ble Apex Court in catena of judicial
pronouncements including, (i) Collector,
Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 Supreme Court
1353 (ii)
State
of Bihar & others v. Kamleshwar Prasad Singh & another, AIR
2000 SC 2306
and (iii) Oriental
Aroma Chemical Industries Ltd., v. Gujarat Industrial Development
Corporation & Anr., (2010)5 SCC 459,
this Court is of the opinion that the present application deserves
to be allowed subject to petitioner’s depositing the cost of Rs.
2,000/- in this Court which will be transmitted to the Gujarat High
Court Legal Services Committee.
5. Hence,
the present application deserves to be allowed and accordingly stands
allowed. Prayer in terms of para 5(A) is granted and delay of 2647
days in filing the application for bringing the heirs of deceased
respondent is hereby condoned subject to petitioner’s depositing the
cost of Rs. 2,000/- (Rupees Two Thousand only) as stated above.
(RAJESH
H. SHUKLA, J.)
jani
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