KANTILAL JOYTARAM PATEL Vs. UDAJI KANAJI THAKOR

JUDGEMENT

(1.) The present appeal along with condonation of delay caused in filing First Appeal under Sec. 96 of the Code of Civil Procedure is filed by the appellants - original plaintiffs challenging the order dtd. 29/4/2017 passed by the 2nd Additional Senior Civil Judge, Mirzapur, Ahmedabad (Rural) below Exh.14 in Special Civil Suit No.320 of 2014. By the said order, the learned Civil Judge has allowed the aforesaid application preferred by the original defendant nos. 6 to 11 under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908. Consequently, the suit filed by the appellant herein - original petitioner has not been entertained.

(2.) In nutshell the case of the original plaintiff as pleaded in the plaint is reproduced hereinunder:

(3.) The present appeal was filed after a delay of 232 days on 21/3/2018. The present appeal was registered as First Appeal (Stamp) No.11156 of 2018 along with Civil Application for condonation of delay being Civil Application No. 1 of 2018. It is noticed from the record that by order dtd. 10/4/2018 this Court had directed the appellants to remove the office objections on or before 15/5/2018, failing which, the appeal was directed to be dismissed for non prosecution. One of the office objections was non furnishing of the certified copy of the impugned order dtd. 29/4/2017. However, the clerk of the advocate had failed to supply the same on record resulting in dismissal for default of the First Appeal as well as Civil Application for condonation of delay in view of the order dtd. 10/4/2018. The appellants had, therefore, moved application seeking restoration of the aforesaid captioned appeal as well as delay application. Noticing the averments made in the restoration, this Court by order dtd. 14/6/2019 had issued the Rule upon the respondents which was made returnable on 19/7/2019. In the interregnum period, the Bailiff report suggested that respondent no.1 had expired 7 months back and respondent no.2 had expired 14 years back. Noticing the fact that the appeal and the delay condonation application stood dismissed for default on the ground of non removal of office objection, this Court by order dtd. 29/4/2022 had condoned the delay which had occurred in filing restoration application and had further directed restoration of the captioned First Appeal along with delay condonation application. Thus, the captioned First Appeal and the delay condonation application filed in the main First Appeal stood revived by order dtd. 29/4/2022 passed by this Court. Noticing the fact of demise of respondent no.1 who had expired on 4/11/2019, the appellants were constrained to move application for bringing heirs and legal representatives of the said deceased respondent along with application seeking condonation of delay of 232 days caused in bringing the heirs of the said respondent on 19/3/2018, which came to be numbered as Civil Application 1 of 2019 (for bringing heirs). In the said application, this Court by order dtd. 3/3/2023 had issued notice upon the proposed heirs of the said respondent. The matter was thereafter notified on various occasions before this Court, however hearing could not be progressed in absence of presence of respondents. This Court, noticing the fact that appeal of 2018 was pending for admission hearing, had called upon the learned counsels who addressed on merits of the case. Learned advocates for the respective parties have jointly urged before us to hear the matter finally. Considering their request and the issue involved, the First Appeal along with Civil Applications were taken up for final hearing at the admission stage.