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Judgment
Mr. A.J. Desai, J. (Oral)—Heard Mr. Jitendra Malkan, learned advocate assisted by Ms. Alpa G. Chhatbar learned advocate appearing for the petitioner, Mr. A.M. Parekh, learned advocate appearing for respondent No. 1 and Ms. Rekha Patel, learned AGP for respondent No.9.
Rule. Mr. A.M. Parekh, learned advocate appearing for respondent No. 1, waives service of notice of Rule on behalf of respondent No. 1 and Ms. Rekha Patel, learned AGP waives service of notice of Rule on behalf of respondent No.9.
With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
By way of the present petition under 227 of the Constitution of India, the petitioner - now the original defendant No. 5 has challenged an order dated 25.01.2017 passed by the Principal Senior Civil Judge, Bhavnagar in Regular Civil Suit No. 226 of 2009 below Exh. 242 submitted by the petitioner for permitting him to file written statement in the suit.
Brief facts arise from the record are as under:
5.1 That an application for issuing a heirship certificate under the provisions of Bombay Regulation 81827 was filed in the Court of learned Civil Judge at Bhavnagar. The said application was numbered as Misc. Civil Application No. 124 of 1995. Pursuant to public advertisement, objections were raised by the several persons including the State of Gujarat about the ownership of the property, for which the heirship certificate was sought for. The persons, who have objected, were made party in the proceedings and ultimately, the said application was converted into Regular Civil Suit No. 226 of 2009. Having come to know that the said suit is likely to proceed, the petitioner, who was made one of the defendants, filed an application at Exh. 242 along with written statement and prayed that the same may be taken on record.
Mr. Jitendra Malkan, learned advocate appearing for the petitioner, would submit that subsequent to conversion of the said application into a civil suit, no summons were issued to the petitioner and therebefore, the petitioner was not aware about the proceedings, which was pending before the Civil Court. The said suit remains pending from 2009 till 2016 without any further progress. When the petitioner came to know about the pendency of the suit, he tried to submit his written statement along with an application, which has been refused by the trial Court by impugned order. He would submit that the trial Court ought to have considered the fact that in absence of summons issued by the Court, the petitioner was not aware about the suit proceedings and therebefore, was not able to file written statement. therebefore, the impugned order dated 25.01.2017 passed by the trial Court is required to be quashed and set aside and the petitioner may be permitted to file written statement in the suit.
On the other hand, Mr. Parekh, learned advocate appearing for the respondent No. 1 original plaintiff, opposed this petition. He would submit that the written statement has been filed at a belated stage and the trial Court has not committed any error in rejecting such application.
Mr. Rekha Patel, learned AGP, appearing for the respondent No. 9 supported the reasons assigned by the trial Court while rejecting the application.
I have heard learned advocates appearing for the respective parties. Perused the pleadings and consider the peculiar facts of the case.
It is an undisputed fact that the application for heirship certificate was filed in the year 1995, which was objected by the several persons including the present petitioner. Considering the objections, the said Misc. Civil Application No. 124 of 1995 was converted into Regular Civil Suit No. 229 of 2009. It is not in dispute that the petitioner is not served with any summons issued by the Court. However, when the petitioner came to know about the same, he has immediately tried to file his written statement before the learned Trial Court. therebefore, in my opinion, the trial Court ought to have allowed the petitioner to file written statement on record.
Considering the above all aspects, the present petition is allowed. The impugned order dated 25.01.2017 passed by the Principal Senior Civil Judge, Bhavnagar is hereby quashed and set aside. The petitioner is permitted to file his written statement before the trial Court. The trial Court shall take the written statement filed by the present petitioner on record and shall proceed with the suit immediately. Since the proceedings is pending from 1995, it is expected that the trial Court shall proceed with the suit in expeditious manner.
The trial Court shall abide by all the orders passed this Court arising out the said proceedings.
Rule is made is absolute to the aforesaid extent. Direct service is permitted.