Ignorance of law does not excuse procedural failures; a formal request to set aside abatement is essential when seeking to condone delay in joining legal heirs of deceased litigants.

ORDER :

Devan M.Desai, J.

1. Heard learned advocate Mr. Jaimin A. Gandhi for the applicants.

2. By way of this application, the applicants have prayed for condonation of delay of 471 days in filing an application to bring legal heirs of applicant No.15 Jyotiben d/o Narandas Kikala-original plaintiff No.1-E.

3. To understand and appreciate the rival contentions, the application of the applicants is reproduced hereinunder:-

“1. The applicants state that Applicant No. 15 (Appellant No. 15) passed away and so a Civil Application is filed for bringing legal heirs on record, wherein there is a delay of 471. days.

2. The applicant submits that they were not aware about the legal requirement of joining the legal heirs of a deceased litigant. The applicant on being instructed to join the legal heirs, thereafter filed application for the purpose of joining the legal heirs. Hence the delay. Hence, the delay. The applicant tenders unconditional apology for the delay in filing the civil application for joining the legal heirs.

3. The applicants therefore pray as under:

(A) The Hon'ble Court may admit and allow the application of the applicant and condone the delay.

(B) The Hon'ble Court may grant any further relief as it deems.”

4. Over and above the said application, the learned advocate for the applicants has placed on record an additional affidavit 30.03.2024, which was taken on record. The relevant paragraphs are reproduced hereinbelow:

“1. I respectfully say and submit that we the plaintiffs were not aware about the legal requirement of joining the legal heirs of the deceased during the pendency of the suit. Accordingly, we did not intimate about the death of one of the plaintiff to the advocate. Subsequently when we challenged the judgment and decree passed in the civil suit before the Honorable High court by way of first appeal, our advocate required us to obtain signature of all the appellants on the vakalatnama. At that point in time we intimated about the death of one of the plaintiff appellant. Accordingly the advocate informed us about the legal requirement of filing necessary application for the purpose of joining the legal heirs of the deceased. Immediately thereafter we initiated the necessary procedure and filed the application for joining legal heirs of the deceased plaintiff / appellant. Hence this delay.

2. I respect say and submit that the plaintiffs/ appellants hold the competent courts with high esteem and respect. However, we litigants were completely unaware about the legal requirement of joining the legal heirs of the deceased. We hereby tender unconditional apology for the delay in filing application for joining legal heirs of the deceased plaintiff appellant.”

5. Learned advocate for the applicants has submitted that original plaintiff No.1-E Jyotiben d/o Narandas Kikala has passed away on 20.10.2018 during the pendency of the suit. The original suit was for declaration and permanent injunction. The suit came to be decreed on 19.02.2022 and when the said judgment and decree came to be challenged by way of First Appeal, the applicants found that the heirs of deceased plaintiff No.1-E were not brought on record. Hence, the application to bring the legal heirs of the deceased Jyotiben d/o Narandas Kikala came to be filed along with the present application for condonation of delay.

5.1 In support of his submissions, learned advocate for the applicants has placed reliance upon the following decisions;

(i) Sardar Amarjit Singh Kalra (dead) by Lrs. & Ors. Vs. Pramod Gupta (Smt) (Dead) by Lrs. & Ors reported in (2003) 3 SCC 272

(ii) Banwari Lal Vs. Balbir Singh reported in 2015 (0) AIJEL-SC 57003.

(iii) Order dated 15.07.2019 passed in Civil Application (For Bringing Heirs) No.1 of 2019 in R/First Appeal No.2889 of 2019 with Civil Application (For Condonation of Delay) No.2 of 2019 in R/First Appeal No.2989 of 2019 by the Co-ordinate Bench of this Court in the case of Bhavanbhai Govabhai vs. The Deputy Collector and Land Acquisition a