CA/7280/2004 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR BRINGING HEIRS No. 7280 of 2004 In CIVIL APPLICATION No. 3746 of 2002 In FIRST APPEAL No. 988 of 2003 ========================================================= SPL.LAQ OFFICER - Petitioner(s) Versus RABARI RATANBEN GOVINDBHAI- WIFE - Respondent(s) ========================================================= Appearance : MR SUIT SHAH GP with MS TRUSHA PATEL, MR HEMANT MAKWANA & MR DR CHAUHAN AGPs for Petitioner(s) : 1, 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 KS JHAVERI Date : 09/07/2008 ORAL ORDER
1. This
application has been filed by the State Government for bringing legal
heirs of one Shri Govindbhai Rabari, who was the claimant in
Reference Case No. 1509/1994 on record of the main matter.
2.
Ms. Trusha Patel, learned A.G.P, has submitted that the original
owner had expired on 14.10.1998 and that when the Reference Court
had passed the award, the original claimant was not alive. She has
relied upon a decision of the Apex Court rendered in the case of
Karuppaswamy & Ors., v. C Ramamurthy reported in AIR 1993 SC
pg. 2324, more particularly, on the observations made in para
nos. 5 and 6, which read as under:-
ýS5.A comparative
reading of the proviso to sub-section (1) shows that its addition has
made all the difference. It is also clear that the proviso has
appeared to permit correction of errors which have been committed due
to a mistake made if good faith but only when the court permits
correction of such mistake. In that event, its effect is not to begin
from the date on which the application for the purpose was made, or
from the date of permission but from the date of suit, deeming it to
have been correctly instituted on an earlier date than the date of
making the application. The proviso to sub-sec (1) of Sec. 21 of the
Act is obviously in line with the spirit and thoughts of some other
provisions in Part III of the Act such as Section 14 providing
exclusion of time of proceeding bona fide in court without
jurisdiction, when computing the period of limitation for any suit,
and Sec 17 (1) providing a different period of limitation starting
when discovering a fraud or mistake instead of the commission of
fraud or mistake. While invoking the beneficent proviso to sub-sec
(1) of Sec 21 of the Act an averment that a mistake was made in good
faith by impleading a a dead defendant in the suit should be made and
the court must on proof be satisfied that the motion to include the
right defendant by substitution or addition was just and proper, the
mistake having occurred in good faith. The Court’s satisfaction alone
breaths life in the suit.
9.Thus, in our opinion,
the course set out in Munshi’s case (AIR 1983 SC 271) (supra) is
attracted to the instant case since the High Court has found that the
plaintiff-respondent had acted in good faith and had committed
mistake in that frame of mind. Munshi’s case, in our view, should
clear the way in favour of the ‘plaintiff-respondent, ending in
dismissal of this appeal.ýý
3. Heard the learned A.G.P.
for the applicant. From a perusal of the documents on record, it is
clear that when the Reference Court had passed the award, the
original claimant was not alive and the First Appeal was filed under
the bona fide belief. Considering the facts of the case, which
is relied upon by the learned AGP, shall not apply to the case on
hand.
4. In view of the above,
this application is not entertained. Hence, the application is
rejected.
[K.S. JHAVERI, J.]
/phalguni/