The present writ petition was preferred by the original petitioner-Patel Kashibhai Tarshibhai, who had expired on 25.5.2008. A Civil Application no.1 of 2018 had been preferred to bring his heirs on record and it was prayed that this Hon’ble Court may be pleased to join the Applicants no.1.1 & 1.2 as the legal heirs of the original petitioner and also to condone 3709 days delay in preferring the said application.
Facts leading to the filing of the civil application were that the original petitioner had preferred a special civil application challenging the legality and validity of an order dated 18/11/9.2006 passed by Respondent no.2. In revision application No.15/2001, the petitioner had also preferred the petition praying for the restoration of an order dated 5/29.12.2000 rendered by the collector Kheda.
Submissions before the Court
Learned advocate for the applicants had submitted that the original petitioner, as well as his wife, had expired on 25.5.2008 and 31.3.1988 respectively. His brother Shri Mohanbhai Talshibhai Patel and his wife too had expired on 26.1.2015 and 4.3.2004 respectively. Therefore, the applicants herein may be permitted to be joined as legal heirs and representatives of the original petitioner.
Reliance was placed on the decision of this Court in the case of Sureshbahi Suvalal Jayswal vs. State of Gujarat (2016), wherein it was brought to the notice of the Court that a Rule of the Gujarat High Court Rules provided for making separate application seeking condonation of delay. The Court, however, found that such rule couldn’t be applied to proceedings under Articles 226 and 227 of the Constitution of India. It was observed that it was open for the applicants to explain the delay that occurred in applying to bringing heirs of the deceased on record of the petition filed under Article 226/227 of the Constitution of India.
On behalf of the learned advocate Mr Vikram Thakore for the respondents, it was contended that the application was barred by limitation and that the applicants were the second-class heirs of the original petitioner. Therefore, they must not be permitted to join as his legal heirs. It was also asserted that there was an inordinate delay in preferring the application and therefore, it must be rejected.
This Court took into consideration the submissions made by learned counsel for both the parties as well as the decision relied upon by the learned counsel for the applicants.
The Court found it appropriate to consider Paragraph 12 of the judgment in the case of Puran Singh v. State of Punjab (supra), which read that even if it was held that Order 22 of the Code didn’t apply to writ proceedings, it didn’t mean that the appellant could ignore the death of the respondent. It was incumbent on the part of the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of knowing a reasonable time, the period prescribed under Article 120 of the Limitation Act could be taken note of. Even if an application was filed beyond 90 days of the death of such respondent, the Court could consider the facts and circumstances of that case. If the High Court would get satisfied with that delay, substituting the heirs of the deceased respondent wasn’t intentional, the High Court may substitute the legal representatives and proceed with the hearing of that petition.
In Puran Singh v. State of Punjab 1996 (supra), the facts of that case had been noticed in Paragraph 2 of the said judgment, from the perusal of which it was apparent that Bir Singh, Respondent No.2, had died on 9.12.1971 and steps for substitution were not taken till 14.3.1975 by the petitioner. Learned Judge of Punjab and Haryana High Court had dismissed the writ petition, as the steps for substitution were not taken for an approximate period of 3 years 3 months. The Hon’ble Apex Court had held that if death took place of a party in a proceeding under Article 226 of the Constitution of India, then steps would be required to be taken within a reasonable time for substitution of the heirs of the deceased.
Because of the above, it cannot be said that steps for substitution were taken within a reasonable period of time concerning the deceased petitioner. Therefore, this Court had an opinion that the heirs and legal representatives of the deceased petitioner could not be permitted to prosecute litigation and be compelled to contest their claims, as those had become final in their favour, due to abatement of the said writ petition.
As a result, the prayer for substitution made on behalf of the deceased petitioner, whose death had taken place three years from the date of filing of the application, was rejected. Consequently, both the petitions failed and were dismissed.
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