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1994 Supreme(Guj) 2
Gujarat High Court
Judgename :S.D.Shah
P.M.Parmar - Appellant
Versus
Ambaben Hargovindas - Respondent
C.R.A. 307 of 1994
Decided On : 01/01/1994
Headnote:
Motor Vehicles Act, 1939 – Section 110-A – Limitation Act – Section 5 – Code of Civil Procedure, 1908 – Section 115 – Constitution of India, 1950 – Article 12 – Accident – Death/ Personal injuries – Claiming Compensation – Condonation of delay – Whether on death of injured claimant, claim petition filed by him abates or right to sue survives to his heirs and legal representatives, is question which arises for consideration in this revision application – Deceased filed a Claim Petition before the Motor Accident Claims Tribunal under Sec. 110-A of Act, 1939, claiming compensation against the applicant -Gujarat State Road Transport Corporation ltd. and opponent No. 5 who was driving offending bus belonging to applicant – In said application, claimed compensation on account of personal injuries sustained by him as a result of vehicular accident occurred due to rash and negligent driving of S. T. bus by opponent No. 5 – During pendency of claim petition, original claimant expired thereupon opponents Nos. 1 to 4 submitted an application praying that they be impleaded in claim proceedings before Tribunal in their capacity as heirs and legal representatives of original claimant – Whether right to sue survives to opponent Nos. 1 to 4 on death of who had filed petition claiming compensation for personal injuries sustained by him in the vehicular accident – Held, provisions of Sec. 5 of the Limitation Act do not of warant an interpretation that an application in writing must be filed before the relief under the said section can be granted. The filing of a formal application for excusing delay is not sine qua non for the exercise of power under the said section and it is always open to the Tribunal to condone the delay if the person concerned is able to convince it that there were justifiable grounds for the delay in presenting the appeal or application. In this case, prayer for condonation of delay is made in application exh. 14 itself and as held by the Tribunal, sufficient cause is made out for condonation of delay caused in filing the application for bringing the heirs and legal representatives on record and setting aside the abatement. It was not incumbent upon the opponent Nos. 1 to 4 to file a separate application for condonation of delay caused in filing the application for bringing them on record and setting aside abatement. In my view, such a technical plea should not have been raised by the applicant, i. e. , Gujarat State Road Transport Corporation, which a "state" within the meaning of Art. 12 of the Constitution of India – It cannot be said that the impugned order has been passed without jurisdiction or in excess of jurisdiction. No ground is made out by the petitioner for interfering with the impugned order in the present revision application which is instituted under Sec. 115 of the Code of Civil Procedure – Revision application fails.
( 1 ) IN this group of Civil Revision applications, the respondent is the judgment-creditor and petitioners are the judgment-debtors (defendants ). It appears that the respondent-plaintiff instituted regular Civil Suit No. 461 of 1988 against Manubhai Dahyabhai Parmar (since deceased) now represented by legal heirs and representatives, who are the petitioners. The suit was filed to recover possession of the suit premises for non-payment of rent commencing from 9-3-1987 at the rate of Rs. 29/- per month till the date of the suit and for further relief of payment of rent or mense profit at the rate of Rs. 29/- till the possession of the suit premises is handed over to the plaintiff. In such suit, the heirs and legal representatives of the original defendant appeared and contended that the rent at the rate of Rs. 29/- per month was excessive and the standard rent was rs. 15/- only. It appears at the hearing of the suit, i. e. , on 17th March 1993, before civil Judge, S. D. , a compromise pursis was filed at Exhibit-39, which inter alia directed that the projected shed beyond 6 feet in the western direction in the land of the plaintiff was to be removed by the defendant. Secondly, it was agreed between the parties that monthly standard rent of the room was Rs. 39/- and standard rent was accordingly decided and it was directed that defendant shall pay the standard rent every month at the rate of Rs. 39/ -. The third condition stipulated that all arrears of rent then due were to be paid by the defendant at a time on or before 15th May 1993 and if the defendant fails to pay the rent, it was directed that the plaintiff shall be entitled to recover possession of the suit room by treating the said consent decree as decree for possession. The fourth condition stipulated that in case the defendant would pay up the rent within the time stipulated in the consent terms or by 31st march 1993, the plaintiff shall not be entitled to recover possession of the suit premises and the defendant shall thereafter pay rent every month at the aforesaid rate of Rs. 39 per month.
( 2 ) IN Civil Revision Application No. 308 of 1994, the very landlord sued to recover possession of the suit room, inter alia on the ground that rent was due and payable at the rate of Rs. 30/- per month from 30th November 1984, i. e. for a period of 23 months and that the defendant was liable to pay the same. He also claimed mesne profit at the rate of rs. 30/- per month from the defendant till realization of possession. The defendent- original tenant Fogatbhai Jivabhai parmar, expired and was represented by his heirs and legal representatives, who are the petitioners before this Court. They appeared before the trial Court and resisted the suit by contending that the standard rent of the suit room at the rate of Rs. 30/- was excessive and that standard rent of the suit room as per municipal Record was only Rs. 15/ -. It appears that when the suit was posted for final hearing before the Fourth Jt. Civil judge (JD), a compromise purs is was filed at Exhibit-31 and it inter alia directed the defendant to remove projected portion beyond 6 feet from the rented room in the western portion of the land of the plaintiff. It was also stipulated that parties have agreed that the rent of rs. 40/- per month would be the standard rent and the defendants-tenants were directed to pay monthly rent at the rate of rs. 40/- every month, that being the standard rent. It was also directed that mesne profit due on the date of the suit shall be paid all at a time on or before 15th of May 1993, by the defendant and in case the defendant would fail to pay such rent, the plaintiff was entitled to recover possession of the suit shop by treating the said consent terms as a decree for possession. It was further stipulated that if defendant would pay up the rent and mense profit by 31st May 1993, at the aforesaid rate, plaintiff was not entitled to recover possession of the suit shop.
( 3 ) I
