CA/11245/2007 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 11245 of 2007 In CIVIL APPLICATION (St.)No.3830 of 2007 In SECOND APPEAL NO.224 of 1988 ===================================================== TARABEN WIDOW OF DAHYABHAI CHITABHAI PATEL & 2 - Petitioner(s) Versus LILAVATIBEN WD/O CHIMANLAL MANILAL GAJJAR & 3 - Respondent(s) ===================================================== Appearance : MR JAYESH M PATEL for Petitioner(s) : 1 - 3.MR MI PATEL for Petitioner(s) : 1 - 3. None for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 2.2.2, 2.2.3,2.2.4 - 4. ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 05/09/2008 ORAL ORDER
Leave
to amend the prayer clause is granted.
This
application has been filed by the applicants with the prayer to
condone the delay of 2989 days and 2575 days from the date of deaths
of the opponents Nos.1 and 2 respectively, caused in filing the
application for bringing heirs of those deceased opponents on the
record of the case.
Rule
was issued on 4-7-2008, making it returnable on 25-7-2008.
Thereafter, on the next date of hearing, fresh rule was issued to the
unserved respondents making it returnable on 13-8-2008. As per the
record of the case, the unserved respondents have been served on
22-7-2008 but they have chosen not to remain present before the
court, either through learned counsel or an authorised
representative.
I
have heard Mr.Jayesh M.Patel,learned counsel for the applicants and
have gone through the averments made in the application. It is
submitted by Mr. Patel that the applicants did not know about the
deaths of the said respondents because they are residing in an
altogether different area and they only came to know regarding their
deaths when it was informed of this fact by the learned advocate for
the said respondents, at the stage when notices issued in the Civil
Application for bringing heirs of the deceased appellant on record
and setting aside the abatement of the Second Appeal issued by the
Registry of this Court on 8-1-2007 were returned unserved, on
13-2-2007, with the endorsement that the opponents Nos.1 and 2 have
expired long back. It is submitted that since knowledge of the deaths
of the concerned opponents was gathered only on or about 17-2-2007,
there is no delay in filing the Civil Application and, therefore, the
prayer made in the application may be allowed.
In
view of the submissions made by the learned counsel for the
applicants as well as the averments contained in paragraphs 2 to 4,
and especially since the respondents have not chosen to contest the
application in spite of service of notice of rule,the prayers made in
the application deserve to be allowed.
Accordingly,
the application is allowed. The delay of 2989 days and 2575 days in
respect of the deaths of opponents Nos.1 and 2 respectively, is
condoned and abatement,is set aside. Rule is made absolute,
accordingly. There shall be no orders as to costs.
(Smt.Abhilasha
Kumari,J)
arg