JUDGMENT
Jayant Patel, J.
1. Rule.
Mr. U.M. Panchal, learned Counsel appears on behalf of the legal heirs of the deceased Shaileshbhai Jayantilal Shah, whose names are described as respondent nos. 1/1 and 1/2, and waives notice of Rule.
With the consent of the parties, the matters are taken up for final hearing today.
2. Since in both these matters, common facts and common questions are there, and they are between the common parties so far as legal heirs of the deceased Shailesh J. shah are concerned, they are being dealt with by a common judgement.
3. The short facts of the case are that the petitioner of Special Civil Application No. 1162 of 2003 filed Special Civil Suit No.339 of 1988 and the petitioner of Special Civil Application No. 1163 of 2003 filed Special Civil Suit No. 361 of 1985 against M/s. Jalpa Enterprise for recovery of the amount which was at the relevant point of time described as a proprietary concern, through its owner – Shaileshbhai Jayantilal Shah. Pending the suit, the said Shaileshbhai Jayantilal Shah expired and the petitioners had an information that the only legal heirs of the deceased Shaileshbhai J. Shah are Shobhanaben S. Shah as widow, Niharika Shailesh Shah and Jalpa Shailesh Shah as daughter. Accordingly, a prayer was made to the trial Court for impleading them as party and such prayer was granted and consequently, the aforesaid legal heirs of the deceased Shaileshbhai J. Shah were joined as party respondents. It is the case of the petitioners that during the course of the deposition, that is, in the examination in chief of Jalpa Shailesh Shah, in the proceedings of Summary Suit No. 339 of 1998, which is wrongly typed as “334 of 1998”, it came on record that Jalpa has one brother named Chirag, who is also the legal heir of the deceased Shaileshbhai J. Shah. The petitioners, therefore, moved an application to the learned trial Judge for impleading Chirag Shaileshbhai Shah as defendant, being the legal heir of original defendant no. 1. It was also prayed in the said application that the delay, if any, be condoned. However, the learned trial Judge, as per the order dated 30th November, 2002, dismissed both the applications in the proceedings of both the suits and, therefore, these petitions.
4. I have heard Mr. Amit V. Thakkar, learned Counsel appearing for the petitioners, and Mr. U.M. Panchal, learned Counsel appearing for the respondents.
5. On perusal of the orders passed by the trial Court, it appears that the trial Court has proceeded on the basis that impleading as party, being legal heirs of the original defendant, is a matter which falls under Order-6 Rule-17 of the Code of Civil Procedure and, therefore, the trial Court found that since there is already an amendment in the Code of Civil Procedure, which has come into effect from 01/07/2002, such application cannot be accepted and, therefore rejected.
6. It appears that there is an error committed by the trial Court on the face of the record while considering both the aforesaid applications inasmuch as when it is a matter of bringing the legal heirs on record, the application is required to be considered keeping in view the provisions of Order-1, Rule-9 and Order-22, Rule-8. Order-22 provided for death, marriage and insolvency of parties and as such, the matter would fall under Order-22, Rule-1 of the Code of Civil Procedure. Perusal of the provisions of Order-22 Rule-4 and other provisions of the Rules under Order-22 makes it clear that no such bar is put up by the legislature over the powers of the Court to allow impleading of the party being legal heirs of the defendant and, therefore, while applying the provisions of Order-6, Rule-17 of the Code of Civil Procedure, the learned trial Judge has committed an apparent error on the face of the record, which deserves to be interfered with.
7. It is true that an application for bringing heirs on record of the defendant is required to be moved to the trial Court within the period of limitation. However, the provisions of Section-5 of the Limitation Act are made applicable to such an application which is made after the period provided for limitation. The ground made out for condonation of delay is that when the first application was made, it was declared before the Court that as per the information of the petitioner-plaintiff, Shobhanaben being widow, Niharika and Jalpa are the only legal heirs and if any other legal heirs are there, it should be declared. Since there was no declaration by even the widow and the daughter, who were brought on record, it can be said that there was sufficient cause for not moving the application for impleading the son, Chirag, as party respondent.
8. The learned Counsel, Mr. U.M. Panchal, appearing on behalf of the respondents, made an attempt to submit that as the deceased Shaileshbhai has deserted widow, son and the daughter since last many years and he was staying with some other lady, and the present respondents, who are legal heirs of the deceased Shaileshbhai, have not inherited any property. Be that as it may. It will be for the respondents to raise such defence at the appropriate stage and it will be for the petitioner to prove, if required. It will be for the trial Court to decide the matter, if questions are so raised at the appropriate time. I am not required to examine the said aspects at this stage since for the present, the question involved is whether the legal heir, Chirag, who is the son of the deceased, should be allowed to be brought on record or not.
9. In view of the aforesaid discussion, the orders passed by the trial Court dated 30th November, 2002 in Special Civil Suit No. 339 of 1988 and Special Civil Suit No. 361 of 1985 below the application to bring on record Chirag Shaileshbhai Shah as legal heir of the deceased Shaileshbhai J. Shah are quashed and set aside and the applications made before the trial Court shall stand allowed and the petitioner-plaintiff shall be at liberty to implead Chirag Shaileshbhai Shah as the son of the deceased Shaileshbhai J. Shah as party defendant, being the legal heir of the original defendant.
10. Both the petitions shall stand allowed accordingly. Rule is made absolute to the aforesaid extent only. No costs.