Courts must condone delay in substitution of legal heirs adopting justice-oriented approach over technicalities, enforcing pleader's duty under O.22 R.10A CPC.

ORAL JUDGMENT

1. Rule returnable forthwith. Learned Advocate Mr. Kuldeep Acharya for learned advocate Mr. Mrugen K Purohit waives service of notice of Rule for respondent Nos. 1, 5, 6 and 7.

2. At the outset, learned Advocate Mr. Mukesh A. Patel appearing for the petitioners states that an affidavit of service of notice upon the legal heirs of respondent No.2 i.e. defendant Nos.2.1 to 2.7 and other respondents was already filed on 19th February, 2016 and 31st August, 2024, respectively. Learned Advocate Mr. Patel states that such affidavits were filed in the Registry of this Court and made available in the file of this matter. Further, learned Advocate Mr. Patel informed this Court that pending the present writ application, the suit in question now transferred to the Principal Senior Civil Judge, Olpad, Surat and it has been given a new number i.e. Special Civil Suit No.29 of 2018.

3. Heard learned Advocate Mr. Mukesh A. Patel for the petitioners and learned Advocate Mr. Kuldeep Acharya for learned Advocate Mr. Mrugen K Purohit for respondent Nos. 1, 5, 6 and 7. Though served, none appears for the respondent No.3.

4. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs,

“A) This Hon'ble Court may kindly be pleased to allow this petition and be pleased to quash and set aside the order dt.6.11.2015 passed by the Ld. 2 Adl. Senior Civil Judge, Surat, below exh. 33 and 45 applications of the petitioners in SCS No. 506 of 2010 and be pleased to join the parties a prayed for, granting relief as prayed in Exh. 45 and 33 application, in the interest of justice.

(B) Pending admission and final disposal of the present petition this Hon'ble Court may kindly be pleased to stay the further proceedings of SCS No.506 of 2010 pending before the Hon'ble Court of Ld. 21st Adl. Senior Civil Judge, Surat and the order dt.6.11.2015 passed by the Ld. 21st Adl. Senior Civil Judge, Surat, below exh. 33 and 45 applications, therein.

(C)Any other relief as may be deemed just and proper may kindly be granted in the interest of Justice.”

5. As far as possible, the parties will be referred to as per their original positions before the Trial Court.

6. THE SHORT FACTS OF THE CASE APPEAR TO BE THAT:

7. The petitioners herein are the original plaintiffs of Special Civil Suit No. 506 of 2010, filed against the respondents, pending before the Senior Civil Judge, Surat. It appears that during the pendency of the suit, the original defendant No.2 died on 10th June, 2012 at Malaysia, which was declared by the Advocate of original Defendant Nos. 1, 3 and 7 vide his pursis dated 07.07.2012 (Exhibit 32). It further appears that the same was received by Advocate of plaintiff on 5.1.2013, thereafter intimated to the petitioners.

7.1. On getting the information about the legal heirs of the deceased defendant No.2, an application below Exhibit 33 appears to have been filed under Order 22 of the CPC on 29.6.2013. Further, vide affidavit below Exhibit 42, further details were provided and so also, stated the reason of delay in filing such application. It further appears that an application below Exhibit 45, came to be filed under Order 6, Rule 17 of the CPC to amend the application filed below Exhibit 33, whereby the cause of delay, pedigree of original defendant No.2 and so also a prayer for seeking condonation of delay and setting aside the abatement to be incorporated in the application filed below Exhibit 33 was sought for.

7.