IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Civil Application (for Bringing Heirs) No. 9970 of 2017
in Civil Application No. 10253 of 2014
in Special Civil Application No. 5411 of 2008,

Decided On: 05.09.2017

Mahendrasinh Jorubha Zala

Vs.

Kantaben Shrikrishna Agrawal

Hon’ble Judges/Coram:Bela M. Trivedi, J.

Citation: AIR 2019(NOC) 748 Guj

1. Civil Application No. 9970 of 2017 has been filed by the third party applicants for bringing the legal heirs of the deceased – original petitioner Kantaben Shrikrishna Agrawal in Civil Application No. 10253 of 2014 filed by the applicants, seeking their impleadment as the petitioners in Special Civil Application No. 5411 of 2008. Similarly Civil Application No. 10370 of 2017 has been filed by the said third party applicants for bringing on record the legal heirs of the deceased original appellant Kantaben in First Appeal No. 1589 of 2011 and in Civil Application No. 10254 of 2014 filed by them, seeking their impleadment/transposition as appellants in the said First Appeal.

2. The said Kantaben, who was the sole appellant in the First Appeal and the sole petitioner in the Special Civil Application has expired on 26.5.2017.

3. The broad facts giving rise to the present proceedings as transpiring from the record are that the land in dispute pertains to Survey No. 220/1 admeasuring 2 acres 34 gunthas situated at Bodakdev. The original landlord of the said land was one Haribhai Talsibhai Patel, who had executed one unregistered agreement to sell in favour of Kantaben Agrawal on 25.4.1968. The said Haribhai Talsibhai Patel, expired on 1.10.1972. The said Kantaben thereafter filed Special Civil Suit No. 1/1975 against the legal heirs of the said Haribhai, seeking specific performance of the said agreement executed by Haribhai. It appears that the said Kantaben had executed one power-of-attorney in favour of one Dr. Harshad Bhupatkar on 9.12.2002 for prosecuting the said suit. The said power-of-attorney holder Dr. Harshad Bhupatkar withdrew the said suit by submitting the purshis (Exh. 254) on 4.11.2004. Pursuant to the said purshis, the suit was permitted to be withdrawn by the concerned Court on 6.11.2004. It further appears that the grandson of the original owner Haribhai Talsibhai and the sons of Pravinbhai Haribhai i.e. Yatinbhai and Manishbhai in the meantime executed one registered sale deed qua their 1/3rd share in the land in question in favour of one Purushottambhai Pravinbhai Patel on 12.6.2002. The said Purushottambhai Pravinbhai Patel executed a registered sale deed qua 1/3rd share in the suit land in favour of the said power-of-attorney holder Dr. Harshad Bhupatkar on 18.3.2005.

4. On 12.8.2005, the said Kantaben – original plaintiff in the suit No. 1/1975 filed Misc. Civil Application No. 37/2005, seeking condonation of delay for restoration of the said suit, which was withdrawn by her power-of-attorney Mr. Bhupatkar. The said application for condonation of delay was dismissed by the Court on 22.11.2006, against which the Special Civil Application No. 2513 of 2007 was filed by the said Kantaben. The High Court vide the order dated 18.4.2007 disposed of the said Special Civil Application quashing and setting aside the order dated 22.11.2006 and directed the trial Court to decide the application, seeking restoration of the suit. The trial Court vide order dated 23.10.2007 dismissed the said MCA No. 36 of 2007 and did not restore the suit. Being aggrieved by the said order, the said Kantaben filed the Special Civil Application No. 5411 of 2008 on 26.12.2007.

5. It further appears that the said Kantaben had filed another Special Civil Suit being No. 376 of 2007 against the legal heirs of the original owner Haribhai Talsibhai and Pravinbhai Parshottambhai, seeking cancellation of the sale deed dated 12.6.2002, sale deed 18.3.2005, for cancellation of the power-of-attorney in favour of Dr. Harshad Bhupatkar, etc. In the said suit, an application under Order VII Rule 11 came to be filed by the defendants, which was allowed by the Court on 16.6.2010 and the plaint was ordered to be rejected. Being aggrieved by the said judgement and order passed in the said suit, the said Kantaben filed the First Appeal No. 1589 of 2011.

6. It further appears that one another suit being Regular Civil Suit No. 66 of 2007 came to be filed by one Mahendrasinh Jorubha Zala and Sudhirbhai Jayantibhai Dalal (third party applicants herein) against the said Kantaben through her power-of-attorney holder Sapan S. Dalal alleging that the said Kantaben had executed one power-of-attorney in favour of the said Sapan Dalal on 2.10.1998 and that the said Sapan Dalal, as power-of-attorney holder of Kantaben, had executed an unregistered agreement on 29.1.2007 to sell her rights under the agreement dated 25.4.1968. The said suit was compromised between the parties to the suit and purshis was filed by the parties on 28.2.2007, whereby the defendant i.e. the said Sapan Dalal as power-of-attorney holder of the said Kantaben (who also happened to be the son of one of the plaintiffs i.e. Sudhir Dalal) accepted the claim of the plaintiffs in the said suit. It appears that thereafter the decree was passed by the concerned Court in the said suit on 3.3.2007 on the basis of the said compromise purshis.

7. The Civil Application No. 10253 of 2014 came to be filed by the third party applicants (who were the plaintiffs in the Regular Civil Suit No. 66 of 2007) in Special Civil Application No. 5411 of 2008, seeking their substitution in place of the original plaintiff Kantaben. Similarly Civil Application No. 10254 of 2014 was filed by the said third party applicants for transposing them as appellants in First Appeal No. 1589 of 2011. The said applications were contested by the concerned respondents, including the original petitioner/appellant Kantaben by filing their respective replies. Pending the said applications, the said Kantaben expired on 26.5.2017. It appears that some compromise had taken place between the said Kantaben and Pravinbhai Patel etc., and therefore, the said Kantaben had filed an application on 10.9.2015 seeking withdrawal of the First Appeal as well as the Civil Application, which also remained pending.

8. Since after the death of the said Kantaben, her legal heirs were not brought on record, the third party applicants have filed the applications being Civil Application No. 9970 of 2017 and Civil Application No. 10370 of 2017 for bringing the legal heirs of the said deceased Kantaben on the record of the civil applications filed by them for their impleadment as the party petitioners/appellants in the Special Civil Application and the First Appeal respectively.

9. The learned Sr. Advocate Mr. Shalin Mehta appearing for Mr. Neeraj Vasu, learned Advocate for the applicants vehemently submitted that the applicants having already filed the applications for being transposed as appellants/petitioners in the pending proceedings as they apprehended that the original appellant Kantaben would join hands with the respondents duping the rights of the applicants under the banakhat executed by the power-of-attorney holder Sapan Dalal of the deceased Kantaben and since pending the said applications, the said Kantaben has expired, the present applications for bringing the legal heirs of the said Kantaben have been filed by the applicants. Mr. Mehta has urged that the legal heirs of the deceased Kantaben are required to be brought on record of the First Appeal and the Special Civil Application, otherwise the applicants would have no remedy to pursue their rights under the banakhat dated 29.1.2007 executed by Sapan Dalal, power-of-attorney holder of the said Kantaben. He alternatively submitted that if the legal heirs of the deceased Kantaben are not permitted to be brought on record, the applications of the applicants for impleading them as the appellants/petitioners be allowed and they may be permitted to prosecute further with the First Appeal and the Special Civil Application, because the legal heirs of the deceased Kantaben are not interested in proceeding further with the said First Appeal and the Special Civil Application.

10. Mr. Mehta has relied upon the decision of the Supreme Court in case of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. and Ors., reported in MANU/SC/0427/2010 : 2010(3) GLH 281 to submit that the Court has discretion to add or strike out any party under Order I Rule 10 (2) of CPC and the judicial discretion should be exercised in the interest of justice. He has also relied upon the decisions of the Supreme Court in case of Dhurandhar Prasad Singh v. Jai Prakash University, reported in MANU/SC/0381/2001 : (2001) 6 SCC 534 and in case of Sharadamma v. Mohammed Pyrejan (Dead) thro. LRs and Anr., reported in MANU/SC/1060/2015 : (2016) 1 SCC 730, to submit that the applicants having derived the right and interest in the property in question by virtue of the banakhat executed by Mr. Sapan Dalal, power-of-attorney holder of the deceased Kantaben pending the proceedings, they should be permitted to be transposed as the appellants and the petitioners, under Order XXII Rule 10 of CPC. Reliance has also been placed on the decision of the Supreme Court in case of Government of Orissa v. Ashok Transport Agency, reported in MANU/SC/0414/2002 : (2002) 9 SCC 28 to submit that whatever steps are taken in the pending proceedings, will continue to operate against and will be binding to the parties, and therefore also, the applicants are required to be permitted to be transposed as appellants/petitioners.

11. Per contra, the learned Sr. Advocate Mr. Mihir Joshi appearing with Ms. Trusha Patel, learned Advocate for the respondents – owners of the suit property submitted that the proceedings of the First Appeal as well as of the Special Civil Application having abated on the death of the sole appellant/petitioner Kantaben and her legal heirs having not been brought on record within the prescribed time limit, the applications filed by the applicants, who have no right to step into the shoes of the original appellant/petitioner, deserve to be dismissed. Mr. Joshi, relying upon various decisions of the Supreme Court submitted that only the parties to the contract in dispute or the assignee or the vendor can be joined as the party to the proceedings in respect of the specific performance of the agreement. He also submitted that the alleged power-of-attorney holder Mr. Sapan Dalal happened to be the son of one of the applicants and they having filed the suit No. 66/2007 in collusion with each other and sought decree from the Court on the basis of the alleged compromise entered into between the parties, without the knowledge of Kantaben, the applicants could not be said to have acquired any right to prosecute the litigation initiated by the said Kantaben, more particularly when the said Kantaben herself during her life time had resisted the applications of the applicants for transposing them as the appellants/petitioners in her place.

12. Learned Sr. Advocate Mr. Sanjanwala, appearing with learned Advocate Mr. Aditya Mehta, learned Advocate for the legal heirs of the said Kantaben supported the contentions raised by the learned Sr. Advocate Mr. Mihir Joshi and further submitted that the legal heirs of the said Kantaben are not interested in prosecuting further with the First Appeal and the Special Civil Application, and therefore, the applicants cannot compel them to be brought on record of the said proceedings.

13. At the outset, it may be stated that the sole appellant/petitioner Kantaben having expired and her legal representatives having not been brought on record within the prescribed time limit, the First Appeal as well as the Special Civil Application, as such, have stood abated by operation of law. In this regard, the provisions of Order XXII Rule 3 be reproduced as under:-

“3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.-(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

14. From the bare reading of the said provision, it clearly transpires that when the sole plaintiff (sole appellant in the instant case) dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made the party and proceed with the suit (appeal in the instant case), however, within the time limit, no application is made, the suit (appeal) would abate. The Supreme Court in the case of Mithailal Dalsangar Singh & Ors. v. Annabai Devram Kini & Ors., reported in MANU/SC/0722/2003 : (2003) 10 SCC 691 has also held inter alia that the abatement of the suit for failure to move an application for bringing the legal heirs on record within the prescribed period of limitation is automatic and a specific order dismissing the suit/appeal as abated is not called for. In the instant case also, the sole appellant Kantaben having expired, and her legal heirs having not made any application within the prescribed time limit for substituting them in place of the original appellant/petitioner, the Special Civil Application and the First Appeal had stood abated by the operation of law of limitation. Hence, the question that falls for consideration before this Court is, as to whether the third party applicants could file the application in the abated proceedings for joining the legal heirs of the deceased Kantaben as the respondent Nos. 1/1 to 1/3 in Civil Application No. 10253 of 2014 filed in Special Civil Application No. 5411 of 2008 and in Civil Application No. 10254 of 2015 in First Appeal No. 1589 of 2011.

15. It is pertinent to note that neither the legal heirs of the deceased appellant/petitioner Kantaben nor the respondents in the First Appeal and the Special Civil Application have filed any application for substituting the legal heirs of the deceased Kantaben in the First Appeal or Special Civil Application. The applications have been filed by the third party applicants for joining the legal heirs of the said deceased Kantaben in the applications filed by them for impleading/transposing them as the appellants/petitioners in the First Appeal and Special Civil Application. The applicants having still not been joined or impleaded either in the First Appeal or Special Civil Application, they could not be said to have any locus standi to file application for bringing the legal heirs of the deceased Kantaben on record of the proceedings which have already stood abated. None of the parties have filed any application for setting aside of the abatement also. As stated herein above, the said First Appeal and the Special Civil Application having already stood abated, such applications at the instance of the third party applicants in the abated proceedings would not be maintainable either under Order I Rule 10 or under Order XXII Rule 3 or under Order XXII Rule 10 of CPC. The alternative submission of Sr. Advocate Mr. Mehta to permit the applicants to prosecute the First Appeal and the Special Civil Application also could not be accepted. The applications filed by the third party applicants for joining them as the appellants/petitioners could be heard and decided in the pending proceedings and not in the proceedings, which have already stood abated. They may take recourse to other remedy as may be permissible under the law.

16. At this juncture, the Court is not inclined to dwell into the merits of the rights of the third party applicants in the land in question as separate suit proceedings have already been initiated by the applicants, however, suffice is to say that the applications being Civil Application No. 9970 of 2017 and Civil Application No. 10370 of 2017 filed by the applicants for bringing on record the legal heirs of the deceased Kantaben in the Civil Applications for impleading them as the party appellants/petitioners being not maintainable, the same having been filed in the First Appeal and the Special Civil Application, which have already stood abated, both the applications deserve to be dismissed and are hereby dismissed.

17. As a result thereof, the other applications being Civil Application No. 10253 of 2014 and No. 10254 of 2014 filed in the Special Civil Application and the First Appeal respectively also stand dismissed.

18. The proceedings of the First Appeal and the Special Civil Application having already stood abated, no further orders are required to be passed in the said proceedings.