TULSIRAM RAMFAL GUPTA Vs. LALLUBHAI MOTIRAM VISHWAKARMA

JUDGEMENT

(1.) By way of this petition filed, under Article 227 of the Constitution of India, the petitioners seek to challenge the order dtd. 5/7/2012 passed below Exhs.31 and 33, in RCS No.115 of 1991, by which learned 2nd Additional District Judge, Surat was pleased to reject the application to condone the delay caused in bringing the legal heirs of original plaintiff as a party appellant.

(2.) This Court has heard learned counsels Mr.Jamsed Kavina, Mr.S.P.Majmudar and Mr.Zubin Bharda for the respective parties.

(3.) Facts and circumstances giving rise to file present petition are that deceased Tulshiram Gupta had filed Civil Suit being RCS No.1192 of 1986 and RCS No.375 of 1989, regarding the land property situated at Surat. Vide judgment and decree dtd. 30/10/1990, both the suits came to be dismissed by the Civil Judge, Surat. The deceased Tulshiram filed an appeal, against the common judgment and decree which came to be registered as Regular Civil Appeal No.115 of 1991. During the pendency of the appeal, on 15/1/2007, original plaintiff Tulshiram died. The present petitioners, being legal heirs of the deceased, did not file the application before the Appellate Court for implement them as a party appellant. There was a delay of 65 days in filing the application for joining them as a party appellant. The petitioners moved an application Exh.31, stating therein the reasons for delay in filing the application and prayed that the delay of 65 days caused in filing the application to join them as a party appellant be condoned as cause of action of the suit is still survived. The learned Second District Judge did not convince and satisfy with the reasons preventing the petitioners in filing the application for joining them as a party and rejected the application.