CASE NO.: Appeal (civil) 2029 of 2008 PETITIONER: SUJABEN MANUBHAI SOLANKI AND ORS RESPONDENT: SHIVSANGBHAI PURSANGBHAI SOLANKI & ORS DATE OF JUDGMENT: 14/03/2008 BENCH: P.P. Naolekar & Lokeshwar Singh Panta JUDGMENT:
JUDGMENT
O R D E R
CIVIL APPEAL NO.2029 OF 2008
(Arising out of SLP) No.19547 of 2006)
1. Leave granted.
2. In a partition suit filed by the respondents herein in the year 1987, a decree was passed in
favour of the respondents on 20.11.1992. Aggrieved by the impugned judgment and order the
father of the present appellants preferred a regular appeal in the High Court on 22.02.1993.
He was the sole appellant. On 06.07.2002, the father of the appellants died when the matter
was pending consideration before the High Court. This fact was brought to the notice of the
High Court by the counsel for the respondents, and the High Court dismissed the First
Appeal on 19.01.2005 as abated.
3. An application was filed by the legal representatives of the deceased appellant on
01.05.2006 before the High Court setting aside abatement and bringing them on record along
with an application for condonation of delay which was dismissed by the High Court. Hence
the present appeal.
4. It appears that the appeal was pending consideration before the High Court since 1993 and
the deceased was the sole appellant before the High Court. It also appears that the legal
representatives were not aware of the pendency of the appeal before the High Court and,
therefore, they could not take steps for bringing them on record in the First Appeal within the
stipulated time. We also notice that the appeal is arising out of a partition suit where both the
parties are in the capacity of plaintiff as well as defendants. Normally, the courts always lean
towards the decision of the matter between the parties on merits and thus the sufficient cause
to receive liberal construction so as to advance substantial justice.
5. Taking an overall view of the facts into consideration and the fact that normally the parties
should be given a liberty to contest the matter on merits unless there is a gross callous
negligence or deliberate inaction with the parties to protect trial, we are of the view that the
interest of justice would be sub-served if the legal representatives are brought on record and
the First Appeal No.1233 of 1993 is restored to its original number by setting aside abatement.
We order accordingly. The High Court will issue fresh notices to the respondents in First
Appeal indicating the date of hearing of the matter. Keeping in view the fact that the matter
is pending for a long time we would request the High Court to consider the desirability of
disposing of the matter as expeditiously as possible, preferably within a period of 8 months
from the date of receipt of the order.
6. This appeal stands disposed of.