MANGALDAS KESHAVLAL Vs. DASHRATLAL KESHAVLAL SHAH

JUDGEMENT

(1.) This petition is filed by the petitioners under Articles 226 and 227 of the Constitution of India, with the following prayers:

(2.) The brief facts for the case are that the petitioners - original plaintiffs, on 6/8/1998, instituted a suit being Civil Suit No. 4035 of 1998 against the predecessor of the respondents i.e. Dashratlal Keshavlal Shah, seeking declaration and permanent injunction in respect of the suit property. That subsequently, the lower Court granted interim injunction in favour of the petitioners in respect of the suit property and thereafter, the suit was sent to the regular hearing board and hence, no further dates for hearing of the suit was given to the petitioners. That, the predecessor of the respondents, in the year 2001, instituted a P.S.R.P Suit viz. 9 of 2006 before the Small Causes Court, Ahmedabad seeking possession of the suit property from the petitioners. That, the Small Causes Court, Ahmedabad on 31/3/2006, allowed the P.S.R.P. Suit and directed the petitioners to hand over the possession of the suit property to the predecessor of the respondents. That, the petitioners, being aggrieved by the order dtd. 31/3/2006 passed by the Small Causes Court, Ahmedabad, preferred a Revision Application viz. Civil Revision Application No. 175 of 2006 before this Court and this Court admitted the matter and stayed the operation and execution of the order dtd. 31/3/2006 passed by the Small Causes Court, Ahmedabad. That, the predecessor of the Respondents- original defendant i.e. Dashratlal keshavlal Shah passed away on 13/10/2011. That, on 16/6/2012, the advocate of the respondents in Civil Revision Application No. 175 of 2006 declared for the first time before this Court that Shri Dashratlal Keshavlal Shah had passed away and thereby, the said Civil Revision Application came to be dismissed as having been abated. It is further contended in the petition that, thereafter, the petitioners immediately preferred an application for setting aside abatement and also for condonation of delay caused in bringing legal heirs of the respondent on record. That, this court on 24/7/2012, allowed the application and thereby the present respondents came to be joined as parties in the Civil Revision Application No.175 of 2006. That, the petitioners also simultaneously sought to join the heirs of the deceased respondent in the suit before the lower Court and with the said objective, the petitioners had contacted their local advocate for taking appropriate steps in the suit, however, the local advocate had informed the petitioners that as the suit was lying dormant and was not being posted on board at the relevant time, application for joining heirs would be required to be filed only when the suit is posted on the board of the lower Court for trial. That, the impression given by the local advocate, the present petitioners waited for the suit to come up on board and for their local advocate to intimate about the same. That, the petitioners on 22/3/2013, immediately preferred an application viz. Civil Misc. Application No. 323 of 2013, for restoration of the suit by setting aside abatement and further prayed for condonation of delay of 120 days caused in bringing the legal heirs of the deceased respondent on record before the lower Court. That, the respondent on 12/6/2013, replied to the aforementioned application and subsequently, the petitioners made a further rejoinder to the reply submitted by the respondents. That, the lower Court after hearing the parties and without considering the contentions of the petitioners herein and the documents produced on record, passed an impugned order dtd. 23/7/2020, rejecting the application for setting aside abatement and condoning the delay of 120 days caused in bringing the legal heirs of the deceased respondent on record.

(3.) Heard learned advocate Mr. Jenil Shah for the petitioners and learned advocate Mr. N.V Gandhi for the respondents.