JUDGMENT
K.A. Puj, J.
1. The appellant original plaintiff has filed this Appeal From Order under Order 43 Rule 1 of the Civil Procedure Code, challenging the order passed by the learned City Civil Judge, Ahmedabad below application Ex.27 and below order Ex.1 in Civil Suit No. 1780 of 1990 dated 30.10.2007 rejecting the application for bringing legal heirs of the defendant on record and also for not taking any legal proceedings to set aside the abatement of the suit.
2. Heard Mr. S.N.Shelat, learned Senior Counsel with Mr. C.B.Dastoor, for the appellant and Mr. U.D.Shukla, learned advocate with Mr.Rahul K. Pandya, learned advocate for the respondents.
3. It is the case of the appellant that the learned City Civil Judge, Ahmedabad has rejected the application for bringing legal heirs of the defendant on record on the ground that the application for setting aside the abatement was not moved and that the application was barred by limitation. According to the appellant, the learned trial Judge was not right in coming to the conclusion that the appellant was aware about the death of the deceased since he was the nearest relative of the deceased.
4. Mr.S.N.Shelat, learned Senior Counsel appearing for the appellant has submitted that the first ground stated by the learned trial judge is contrary to the settled principle of law. In support of his submission he relied on the decision of this Court in the case of Matuben Sundarji Sejpal v. Anantbhai Tekchand reported in 1995 36(1) GLR 351, wherein it is held that Sub-Rule (5) provides for condonation of delay in filing an application for setting aside abatement. In that case, plaintiff has filed an application for bringing heirs on record and has also filed an application for condonation of delay in filing the said application. The Court took the view that filing of an application for bringing heirs on record implies that the plaintiff wants to set aside the abatement, if any, that has occurred and bring the heirs on record. No application for bringing heirs can be granted without setting aside an abatement. Filing of an application for bringing heirs on record impliedly states that the plaintiff or an applicant wants that abatement be set aside and heirs be brought on record. He has, therefore, submitted that the reasoning given by the learned trial Judge is contrary to the law laid down by this Court.
5. As far as the knowledge about the death of the defendant is concerned, the appellant has categorically stated that he was not aware about the death and even if the other side has disputed this fact, it is word against the word and hence the application cannot be rejected on this ground. He has further submitted that the court normally takes lenient view in the matter of setting aside of abatement or bringing the legal heirs on record.
6. As far as question regarding setting aside the abatement or bringing the legal heirs on record is concerned, Mr.Shelat has relied on the judgment of Hon’ble Supreme Court in the case of State of Madhya Pradesh v. S.S. Akolkar , wherein it is held that it is settled law that the consideration for condonation of delay under Section 5 of Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. He has, therefore, submitted that the Court should take liberal view while granting permission to bring the heirs on record after setting aside the abatement. He has, therefore, submitted that the order passed by the learned City Civil Judge is required to be quashed and set aside.
7. Mr. U.D.Shukla, learned advocate appearing for the respondents on caveat, on the other hand has submitted that so far as the first preposition is concerned, there is no dispute and even an application for bringing the heirs may be entertained without making an application for setting aside abatement. However, so far as second ground is concerned he strongly urged that the application was hopelessly barred by limitation and no plausible explanation was given by the appellant. On the contrary, the reason given was absolutely false and hence no interference be called for in the order passed by the learned City Civil Judge.
8. Mr.Shukla has also submitted that subsequent conduct of the appellant is also required to be taken into consideration. After moving application to bring the legal heirs on record, the appellant has not made any attempt to get the application decided for about 8 years. He has, therefore, submitted that delay was rightly not condoned by the learned City Civil Judge. Alternatively, he has submitted that if the Court is of the view that delay is to be condoned, in that case, heavy cost should be imposed upon the appellant.
9. Having heard the learned advocates for the respective parties and having gone through the order passed by the learned City Civil Judge and having considered the averments made in the Appeal memo as well as statutory provisions contained in the Civil Procedure Code and the decided case law on the subject, the Court is of the view that, application moved by the appellant for bringing legal heirs on record ought to have been considered by the learned City Civil Judge liberally. It is true that there was delay of more than 3 years but an explanation was given and there may be some justification in canvassing an argument that because of the strenuous relation the appellant might not have attended to the funeral of his uncle. Presumption of knowledge of death of defendant on the ground of mean relationship of the appellant and that too, in absence of any intimation by the defendant’s advocate to the Court about his death, as required under Order 22, Rule 10A of Civil Procedure Code, does not justify the rejection of appellant’s application for bringing the legal heirs of the defendant on record. Considering the judgments relied on by Mr.Shelat and principle laid down therein, this Court is of the view that liberal approach is required to be taken in the present matter and the application to bring legal heirs on record is therefore allowed. The appellant is permitted to substitute the name of the defendant by joining the legal heirs as party defendants in the suit. However, there is inordinate delay for which the appellant is saddled with cost of Rs. 5,000/-. The appellant is, therefore, directed to deposit the cost of Rs. 5,000/- before the City Civil Court, Ahmedabad and it is open for the respondent to withdraw the said amount from the City Civil Court after the said amount is deposited by the appellant.
10. Since the suit is of 1990 the trial Court is hereby directed to decide the suit as expeditiously as possible, preferably, within the period of six months from the date of receipt of writ from this Court or certified copy of this order, whichever is earlier.
11. Subject to the aforesaid directions and observations, this Appeal From Order is accordingly allowed to the above extent.
12. Since the Appeal From Order is disposed of Civil Application does not survive and it is accordingly disposed off.
Direct service is permitted.