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CA/3290/2007 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR BRINGING HEIRS No. 3290 of 2007
In
SECOND
APPEAL No. 54 of 2007
=========================================================
KHERUNBEN
RAHIMBHAI - Petitioner(s)
Versus
MEMON
AJIJBHAI SATARBHAI - Respondent(s)
=========================================================
Appearance
:
MR
YN RAVANI for
Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5
None for
Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,
1.2.7,1.2.8
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 30/07/2008
ORAL
ORDER
Heard
Mr. Y.N. Ravani, learned counsel appearing for the applicants.
The
applicants have prayed that they may be permitted to be joined as
heirs and legal representatives of deceased Memon Rahimbhai Satarbhai
in the pending Second Appeal. According to Mr. Ravani, bringing of
heirs and legal representatives on record is necessary for proper
legal disposal of the pending appeal.
The
applicants have also prayed for condonation of delay of 495 days in
preferring the above application.
On
expiry of 90th day from the date of death of a party, the
matter would abate qua that deceased party and if the heirs or legal
representatives of the said deceased party feel that cause of action
still survives, then, it is obligatory on the part of such heir or
legal representative to approach the Court praying for setting aside
of abatement and permit them to continue with the litigation. In the
present case, the other side has not shown any resistance if heirs
are permitted to continue with the litigation nor written objections
are filed and, therefore, without dealing with the issue as to
whether delay caused in filing the application should be condoned or
not, it is observed that the abatement, on account of death of
deceased party be treated as set aside and heirs are permitted to
continue the list qua deceased party.
I
have heard Mr. Ravani. The parties to whom Rule is not served,
obviously shall be represented by Mr. Ravani. Mr. Ketan Dave appears
for the contesting party, that is, the person claiming to be tenant
of the premises in question.
Considering
the nature of relief prayed which is innocuous, the present
application requires to be allowed and is accordingly allowed. The
applicants are permitted to be joined as heirs and legal
representatives of deceased Memon Rahimbhai Satarbhai in the Second
Appeal.
Necessary
amendment be made in the cause title of the Second Appeal. Rule is
made absolute accordingly.
[C.K.
BUCH, J.]
pirzada/-
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