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Judgment
Ilesh J. Vora, J
Challenge in this petition under Article 227 of the Constitution of India is to the orders passed below Exh.17,20,53 and 56, in Civil Appeal No.123 of 2014, whereby the appellate Bench of Small Causes Court, Ahmedabad rejected the prayer for joining the legal heirs and representative of the deceased Kailashgiri Goswami and dismissed the appeal under Order IX Rule 10 of the Code of Civil Procedure.
This Court has heard learned counsel Mr.J.F.Mehta and learned counsel Mr.Atit Thakore for the respective parties.
Deceased Kailashgiri Goswami, father of the respondent, preferred HRP Suit No.32 of 2012 suit for eviction of the suit premises against the petitioner original defendant. The suit came to be allowed and against the judgement and decree the appeal was preferred by the petitioner and the same was registered as Civil Appeal No.123 of 2014. Pending the appeal, the original plaintiff, Kailashgiri Goswami passed away. The petitioner preferred application Exh.17 for bringing the legal heirs of deceased Kailashgiri Goswami. The appellate Court issued notice to proposed legal heirs. On failure the pay process fee the appeal came to be dismissed under Order IX Rule 10 of the Code of Civil Procedure. Vide Exh.20, the petitioner moved an application for restoration of the appeal and setting aside the abatement. Vide order dated 01.09.2018, the Bench of Small Causes of Court, Ahmedabad rejected the application observing that the petitioner could not have filed restoration application unless and until the abatement is set aside. Vide Exh.53, the petitioner moved another application for setting aside the abatement with a prayer to condone the delay in filing the application of setting aside the abatement and restoration and same came to be dismissed by the appellate Court.
In the aforesaid facts learned counsel Mr.Mehta submitted that by adopting hyper technical approach, the appellate Court rejected the aforesaid applications without assigning any sufficient reasons and as such there was no fault on the part of the petitioner who is facing the decree of eviction and, therefore, the Court below overlooked the said aspects and failed to exercise its jurisdiction.
Opposing the petition, Mr. Atit Thakore has submitted that the Court below has rightly rejected the application and as such no error much less error of law can be said to have been committed by the Court below and, thus, no case is made out for exercising supervisory jurisdiction.
Having heard the learned counsel for the respective parties and on the impugned order passed below Exh.17, it appears that the application bringing legal heirs on record was filed in a limitation but the learned counsel appearing for the petitioner failed to affix necessary process fee. The Court below ought not have dismissed the appeal on this ground alone and could have granted an opportunity to contest the appeal on merits. The fault for non-payment of process fee cannot be sufficient ground to dismiss the appeal. In such circumstances, without entering into the merits of the case, the impugned orders passed below Exh.17, Exh.20, Exh.53 and Exh.56, are not sustainable in law and are quashed and set aside. The application Exh.17 for bringing legal heirs of the original plaintiff is allowed. The order for abatement is hereby set aside. The delay caused in filing application for abatement and restoration of the appeal is hereby condoned. The appeal No.123 of 2014 is restored on its original file. Considering the age of the appeal, the appellate Bench, Small Causes Court, Ahmedabad shall dispose of it within the period of one year from the receipt of this order, on its own merits and in accordance with law.
In the aforesaid reasons, the petition is allowed in the aforesaid terms. No order as to costs.