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CASE NO.: Appeal (civil)  2029 of 2008

PETITIONER: SUJABEN MANUBHAI SOLANKI AND ORS

RESPONDENT: SHIVSANGBHAI  PURSANGBHAI SOLANKI & ORS

DATE OF JUDGMENT: 14/03/2008

BENCH: P.P. Naolekar & Lokeshwar Singh Panta

JUDGMENT: JUDGMENT

O R D E R  

CIVIL APPEAL NO.2029 OF  2008 (Arising out of SLP) No.19547 of 2006)

1.      Leave granted.

2.      In a partition suit filed by the respondents herein in the year 1987, a decree was p assed in  favour of the respondents on 20.11.1992.  Aggrieved by the impugned judgment and order the  father of the present appellants preferred a regular appeal in the High Court on 22.02.1993.    He was the sole appellant.  On 06.07.2002, the father of the appellants died when the matter   was pending consideration before the High Court.  This fact was brought to the notice of the   High Court by the counsel for the respondents, and the High Court dismissed the First  Appeal on 19.01.2005 as abated.

3.      An application was filed by the legal representatives of the deceased appellant on  01.05.2006 before the High Court setting aside abatement and bringing them on record along  with an application for condonation of delay which was dismissed by the High Court. Hence  the present appeal.

4.      It appears that the appeal was pending consideration before the High Court since 199 3 and  the deceased was the sole appellant before the High Court.  It also appears that the legal  representatives were not aware of the pendency of the appeal before the High Court and,  therefore, they could not take steps for bringing them on record in the First Appeal within  the  stipulated time.  We also notice that the appeal  is arising out of a partition suit where b oth the  parties are in the capacity of plaintiff as well as defendants.  Normally, the courts always  lean  towards the decision of the matter between the parties on merits and thus the sufficient cau se  to  receive liberal construction so as to advance substantial justice.   

5.      Taking an overall view of the facts into consideration and the fact that normally th e parties  should be given a liberty to contest the matter on merits unless there is a gross callous  negligence or deliberate inaction with the parties to protect trial, we are of the view that  the  interest of justice would be sub-served if the legal representatives are brought on record a nd  the First Appeal No.1233 of 1993 is restored to its original number by setting aside abateme

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nt.   We order accordingly.  The High Court will issue fresh notices to the respondents in First  Appeal indicating the date of hearing of the matter.  Keeping in view  the fact that the mat ter  is pending for a long time we would request the High Court to consider the desirability of  disposing of the matter as expeditiously as possible, preferably within a period of 8 months   from the date of receipt of the order. 6.      This appeal stands disposed of.