Abatment of suit
Nayan Mehta
(Querist) 18 August 2016
This query is : Resolved
IN A SPECIAL CIVIL SUIT PLAINTIFF DIES,
AFTER 180 DAYS NOTHING HAPPENED AND SUIT WAS ABATED WHAT CAN I DO FOR RESORATION OF SUIT?
WEATHER I FILE SPECIAL CIVIL APPLICATION BEFORE HIGH COURT ?
OR ELSE
pLS PROVIDE IF ANY FORMAT?
OR I FILE APPLICATION UNDER ORDER 22 RULE 3 TO THE SAME COURT WHO PASS ABATE OF SUIT ORDER.
iN MY CASE THREE PLAINTIFF ARE THERE OUT OF THREE ONLY ONE DIES REMAINING TWO SERVIVES.
PLAINTIFF NO. 1 IS FATHER WHO DIES
PLAINTIFF NO. 2 IS SON OF PLAINTIFF NO. 1 WHO DIES
PLAINTIFF NO. 3 IS DAUGHTER OF PLAINTIFF NO 1 WHO DIES.
Ms.Usha Kapoor
(Expert) 21 August 2016
You file order 22 rule petition to bring the LRs of deceased father plaintiff on file which has been abated.or the plaintiff no.2 and 3 are the other LRs? and no other LRs are there. Then no need to file Lr petition for the deceased father due to which the suit got abated. Under Order 22 rule 5 court makes an inquiry and finds them as true LRS it may restore the suit which has been abated under order 22 rule 3 of /cPC.
In case the lower court doesn't accept your pleadings and dismisses the suit for restoration of suit you file either a review petition in the same court for misconception of law and fact or file a c Civil Revision Petition in the Hugh Court seeking restoration of the suit on file on the ground of lower court exceeding its jurisdiction while dismissing your review application.In the same lower court also you can file civil appeal for misconception of law and facts on the part of the lower court and urging i it to restore your suit.
cherukuri prasad
(Expert) 21 August 2016
I presume Suit did not abate. It got dismissed for default. The plea of maintainability should be raised by the defendants not plaintiff. Bring the Legal representatives on record. Suit can be restored because the reason appears to be genuine.
cherukuri prasad
(Expert) 21 August 2016
Order 22 cpc has exhaustive procedure. Please read and all your doubts shall be cleared.
Nayan Mehta
(Querist) 25 August 2016
BEFORE THE HON’BLE SENIOR CIVIL JUDGE
(Senior Division) COURT AT RAJKOT
Civil Misc. Application No. of 2016
In
Special Civil Application No. 136 Of 2015
1 Shri Tulsibhai Ravjibhai Akbari
2 Arunbhai Tulsibhai Akbari
3 Ilaben Tulsibhai Akbari W/o Kaushikbhai Vora
residing at Udaynagar – 1,
Street No. 15, “Galaxy”
Mavadi Main Road,
Rajkot 360 004. ..………Plaintiff
VERSUS
1. Shri Jayendrabhai Muljibhai Akbari.
2. Smt. Yoginiben Jayendrabhai Akbari.
3. Mr. Gaurav kumar Jayendrabhai Akbari.
4. Smt. Hansaben Rameshbhai Tilara.
5. Kum. Nirali Babubhai
Defendant No. 1, 2, 3, 4 and 5 Reside at
"Anugrah Appartment"
Janki Park, Nanamava,
Rajkot.
6. Mr. Arvindbhai Jasmatbhai Ramani.
7. Smt. Diwaliben Jasmatbhai Ramani.
8. Smt. Kashmiraben Jagabhai Dhaduk.
Defendant No. 4, 5 and 6 Reside at
Post Kamlapur, Taluka Jasdan, District Rajkot.
Rajkot.
9. Mr. Jagabhai Khimjibhai Dhaduk.
Defendant No. 7 Reside at
Post Santhali, Taluka Jasdan, District Rajkot.
Rajkot.
10. State of Gujarat
Through Chief Secretary,
Sachivalay, Gandhinagar.
Service through District Government Pleader,
Rajkot.
11. Collector Shree.
Office of the collector,
Rajkot District,
Rajkot. ………………………….Defendants
APPLICATION UNDER ORDER 22 RULE 4, READ WITH SECTION 151 OF CIVIL PROCEDURE CODE 1908, FOR SUBSTITUTION OF LEGAL REPRESENTATIVE OF PLAINTIFF NO. 1 SHRI TULSIBHAI RAVJIBAHI AKBARI.
MOST RESECTFULLY SHOWETH:
The Humble Appellant above named begs to submit as under:-
(1) That the Plaintiff no. 1 Mr. Tulsibhai Ravjibhai Akbari has died on 10-11-2015.
(2) That the deceased Respondent no. 1 Late Shri. Tulsibhai Ravjibhai Akbari has left surviving heirs the following legal representatives who are his heirs being related to his as follows: -
1(a): Shri Arunbhai S/o Tulsibhai Akbari
1(b): Shri Illaben D/o Tulsibhai Akbari
1(c): Shri Hareshbhai S/o Tulsibhai Akbari
1(d): Shri Geetaben D/o Tulsibhai Akbari
1(e): Late Manjulaben D/o Tulsibhai Akbari W/o Shivlalbhai Bhanderi
1(e)1 : Shri Shivlalbhai Jivrajbhai Bhanderi
1(e)2 : Shri Piyush Shivlalbhai Bhanderi
1(e)3 : Shri Darshnaben Shivlalbhai Bhanderi
(3) That the right to sue survives against legal hairs of Late Shri. Tulsibhai Ravjibhai Akbari. It is on the record that the Shri Arunbhai Tulsibhai Akbari and Shri Illaben Tulsibhai Akbari were already on the record. It is necessary in the interest of justice that heirs may be taken on record as legal representative of Respondent no. 1 as 1/1 to 1/7 respectively and against the name of respondent no. 1 (died during pendency of the suit may be inserted)
(4) That the word DECEASED may also be added after the name of Shri. Tulsibhai Ravjibhai Akbari (Petitioner no. 1).
It, is, therefore, humbly prayed that the legal representative of the deceased Petitioner no.1 Shri. Tulsibhai Ravjibhai Akbari in Para No. 2 above may kindly be ordered to be brought on record.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
BEFORE THE HON’BLE SENIOR CIVIL JUDGE
(Senior Division) COURT AT RAJKOT
Civil Misc. Application No. of 2016
In
Special Civil Application No. 136 Of 2015
Shri Arunbhai Tulsibhai Akbari ..………Plaintiff
VERSUS
Shri Jayendrabhai Muljibhai Akbari. ………….Defendants
AFFIDAVIT IN SUPPORT OF THE APPLICATION
AFFIDAVIT
I, Arunbhai Tulsibhai Akbari S/o Late Shri Tulsibhai Ravjibhai Akbari, aged about 62 years, residing at Udaynagar – 1,
Street No. 15, “Galaxy” Mavadi Main Road, Rajkot, do hereby make oath and state as under:
(1) That I am the applicant in the above named and I am also plaintiff in original suit and I am fully conversant with the facts involved in this case.
(2) That the annexed application has been drafted by my counsel under my instructions and its contents have been read over and explained to me in simple Gujarati and I have fully understood the same.
(3) That the facts contained in Para Nos. 1 to 4 of the annexed application are true to my personal knowledge and the legal submissions contained therein are true to my belief.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
VERIFICATION
I, Arunbhai Tulsibhai Akbari S/o Late Shri Tulsibhai Ravjibhai Akbari, residing at Udaynagar – 1, Street No. 15, “Galaxy” Mavadi Main Road, Rajkot, the above- named deponent, do hereby make oath and verify that the contents of my above affidavit from Para Nos. 1 to 3 are true to my personal knowledge. Nothing material has been concealed and no part of it is false.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
BEFORE THE HON’BLE SENIOR CIVIL JUDGE
(Senior Division)COURT AT RAJKOT
District Rajkot.
Civil Misc. Application No. of 2016
In
Special Civil Application No. 136 Of 2015
1 Shri Arunbhai Tulsibhai Akbari
2 Arunbhai Tulsibhai Akbari
3 Ilaben Tulsibhai Akbari W/o Kaushikbhai Vora
residing at Udaynagar – 1,
Street No. 15, “Galaxy”
Mavadi Main Road,
Rajkot 360 004. ..………Plaintiff
VERSUS
1. Shri Jayendrabhai Muljibhai Akbari.
2. Smt. Yoginiben Jayendrabhai Akbari.
3. Mr. Gaurav kumar Jayendrabhai Akbari.
4. Smt. Hansaben Rameshbhai Tilara.
5. Kum. Nirali Babubhai
Defendant No. 1, 2, 3, 4 and 5 Reside at
"Anugrah Appartment"
Janki Park, Nanamava,
Rajkot.
6. Mr. Arvindbhai Jasmatbhai Ramani.
7. Smt. Diwaliben Jasmatbhai Ramani.
8. Smt. Kashmiraben Jagabhai Dhaduk.
Defendant No. 4, 5 and 6 Reside at
Post Kamlapur, Taluka Jasdan, District Rajkot.
Rajkot.
9. Mr. Jagabhai Khimjibhai Dhaduk.
Defendant No. 7 Reside at
Post Santhali, Taluka Jasdan, District Rajkot.
Rajkot.
10. State of Gujarat
Through Chief Secretary,
Sachivalay, Gandhinagar.
Service through District Government Pleader,
Rajkot.
11. Collector Shree.
Office of the collector,
Rajkot District,
Rajkot. ………………………….Defendants
APPLICATION UNDER ORDER 22 RULE 9 OF CIVIL PROCEDURE CODE 1908, FOR SUBSTITUTION OF LEGAL REPRESENTATIVE OF PLAINTIFF NO. 1 AND SET ASIDE THE ABETMENT OF SUIT ORDER DATED 05/07/2016.
MOST RESECTFULLY SHOWETH:
The Humble Appellant above named begs to submit as under:-
(1) That the Plaintiff no. 1 Mr. Tulsibhai Ravjibhai Akbari has died on 10-11-2015.
(2) That the deceased Respondent no. 1 Late Shri. Tulsibhai Ravjibhai Akbari has left surviving heirs the following legal representatives who heirs are being related to him as follows: -
1(a): Shri Arunbhai S/o Tulsibhai Akbari
1(b): Shri Illaben D/o Tulsibhai Akbari
1(c): Shri Hareshbhai S/o Tulsibhai Akbari
1(d): Shri Geetaben D/o Tulsibhai Akbari
1(e): Late Manjulaben D/o Tulsibhai Akbari W/o Shivlalbhai Bhanderi
1(e)1 : Shri Shivlalbhai Jivrajbhai Bhanderi
1(e)2 : Shri Piyush Shivlalbhai Bhanderi
1(e)3 : Shri Darshnaben Shivlalbhai Bhanderi
(3) That the right to sue survives against legal hairs of Late Shri. Tulsibhai Ravjibhai Akbari. It is on the record that the Shri Arunbhai Tulsibhai Akbari and Shri Illaben Tulsibhai Akbari were already on the record. It is necessary in the interest of justice that heirs may be taken on record as legal representative of Respondent no. 1 as 1/1 to 1/8 respectively and against the name of respondent no. 1 (died during pendency of the suit may be inserted)
(4) That from the side of petitioner no 1/2 to 1/7 no information was given with regard to this particular fact that respondent no. 1 died. The applicant came to know this fact of death of respondent no. 1 on 15.07.2016 only; this application is being filed without delay.
It, is, therefore, humbly prayed that the legal representative of the deceased Petitioner no.1 Late Shri. Tulsibhai Ravjibhai Akbari in Para No. 2 above may kindly be ordered to be brought on record and the abatement of the suit may kindly be set aside.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
BEFORE THE HON’BLE SENIOR CIVIL JUDGE
(Senior Division) COURT AT RAJKOT
Civil Misc. Application No. of 2016
In
Special Civil Application No. 136 Of 2015
Shri Arunbhai Tulsibhai Akbari ..………Plaintiff
VERSUS
Shri Jayendrabhai Muljibhai Akbari. ………….Defendants
AFFIDAVIT IN SUPPORT OF THE APPLICATION
AFFIDAVIT
I, Arunbhai Tulsibhai Akbari S/o Late Shri Tulsibhai Ravjibhai Akbari, aged about 62 years, residing at Udaynagar – 1,
Street No. 15, “Galaxy” Mavadi Main Road, Rajkot, do hereby make oath and state as under:
(1) That I am the applicant in the above named and I am also plaintiff in original suit and I am fully conversant with the facts involved in this case.
(2) That the annexed application has been drafted by my counsel under my instructions and its contents have been read over and explained to me in simple Gujarati and I have fully understood the same.
(3) That the facts contained in Para Nos. 1 to 4 of the annexed application are true to my personal knowledge and the legal submissions contained therein are true to my belief.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
VERIFICATION
I, Arunbhai Tulsibhai Akbari S/o Late Shri Tulsibhai Ravjibhai Akbari, residing at Udaynagar – 1, Street No. 15, “Galaxy” Mavadi Main Road, Rajkot, the above- named deponent, do hereby make oath and verify that the contents of my above affidavit from Para Nos. 1 to 3 are true to my personal knowledge. Nothing material has been concealed and no part of it is false.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
BEFORE THE HON’BLE SENIOR CIVIL JUDGE
(Senior Division)COURT AT RAJKOT
District Rajkot.
Civil Misc. Application No. of 2016
In
Special Civil Application No. 136 Of 2015
1 Shri Arunbhai Tulsibhai Akbari
2 Arunbhai Tulsibhai Akbari
3 Ilaben Tulsibhai Akbari W/o Kaushikbhai Vora
residing at Udaynagar – 1,
Street No. 15, “Galaxy”
Mavadi Main Road,
Rajkot 360 004. ..………Plaintiff
VERSUS
1. Shri Jayendrabhai Muljibhai Akbari.
2. Smt. Yoginiben Jayendrabhai Akbari.
3. Mr. Gaurav kumar Jayendrabhai Akbari.
4. Smt. Hansaben Rameshbhai Tilara.
5. Kum. Nirali Babubhai
Defendant No. 1, 2, 3, 4 and 5 Reside at
"Anugrah Appartment"
Janki Park, Nanamava,
Rajkot.
6. Mr. Arvindbhai Jasmatbhai Ramani.
7. Smt. Diwaliben Jasmatbhai Ramani.
8. Smt. Kashmiraben Jagabhai Dhaduk.
Defendant No. 4, 5 and 6 Reside at
Post Kamlapur, Taluka Jasdan, District Rajkot.
Rajkot.
9. Mr. Jagabhai Khimjibhai Dhaduk.
Defendant No. 7 Reside at
Post Santhali, Taluka Jasdan, District Rajkot.
Rajkot.
10. State of Gujarat
Through Chief Secretary,
Sachivalay, Gandhinagar.
Service through District Government Pleader,
Rajkot.
11. Collector Shree.
Office of the collector,
Rajkot District,
Rajkot. ………………………….Defendants
APPLICATION UNDER SECTION 5 OF LIMITATION ACT FOR CONDONATION OF DELAY CAUSED IN FILING APPLICATION FOR SUBSTITUTION OF LEGAL REPRESENTATIVE OF PETITIONER NO. 1 MR. TULSIBHAI RAVJIBHAI AKBARI AND SET ASIDE THE ABATEMENT OF SUIT.
MOST RESECTFULLY SHOWETH:
The Humble Appellant above named begs to submit as under:-
(1) That the Plaintiff no. 1 Mr. Tulsibhai Ravjibhai Akbari has died on 10-11-2015.
(2) That the deceased Respondent no. 1 Late Shri. Tulsibhai Ravjibhai Akbari has left surviving heirs the following legal representatives who his heirs are being related to his as follows: -
1(a): Shri Arunbhai S/o Tulsibhai Akbari
1(b): Shri Illaben D/o Tulsibhai Akbari
1(c): Shri Hareshbhai S/o Tulsibhai Akbari
1(d): Shri Geetaben D/o Tulsibhai Akbari
1(e): Late Manjulaben D/o Tulsibhai Akbari W/o Shivlalbhai Bhanderi
1(e)1 : Shri Shivlalbhai Jivrajbhai Bhanderi
1(e)2 : Shri Piyush Shivlalbhai Bhanderi
1(e)3 : Shri Darshnaben Shivlalbhai Bhanderi
(3) That the right to sue survives against legal hairs of Late Shri. Tulsibhai Ravjibhai Akbari. It is on the record that the Shri Arunbhai Tulsibhai Akbari and Shri Illaben Tulsibhai Akbari were already on the record. It is necessary in the interest of justice that heirs may be taken on record as legal representative of Respondent no. 1 as 1/1 to 1/7 respectively and against the name of respondent no. 1 (died during pendency of the suit may be inserted).
(4) That the above mentioned matter was listed before Hon'ble court and there was a stage to reply, that the petitioner no. 1 has died then the applicant came to know about the death of petitioner no.1, and hence this application is being filed without any further delay. Furthermore the petitioner no. 3 was in Pune and not available for long period, then after remaining two sisters were some dispute regarding the property hence they also unknown about death of petitioner. Furthermore the one of sister is already deceased hence we informed to them in the month of July so no more delay happened we filed this application.
It, is, therefore, humbly prayed that the legal representative of the deceased Petitioner no.1 Shri. Tulsibhai Ravjibhai Akbari in Para No. 2 above may kindly be ordered to be brought on record, and the delay in filing the application may kindly be condoned in the interest of justice.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
BEFORE THE HON’BLE SENIOR CIVIL JUDGE
(Senior Division) COURT AT RAJKOT
Civil Misc. Application No. of 2016
In
Special Civil Application No. 136 Of 2015
Shri Arunbhai Tulsibhai Akbari ..………Plaintiff
VERSUS
Shri Jayendrabhai Muljibhai Akbari. ………….Defendants
AFFIDAVIT IN SUPPORT OF THE APPLICATION
AFFIDAVIT
I, Arunbhai Tulsibhai Akbari S/o Late Shri Tulsibhai Ravjibhai Akbari, aged about 62 years, residing at Udaynagar – 1,
Street No. 15, “Galaxy” Mavadi Main Road, Rajkot, do hereby make oath and state as under:
(1) That I am the applicant in the above named and I am also plaintiff in original suit and I am fully conversant with the facts involved in this case.
(2) That the annexed application has been drafted by my counsel under my instructions and its contents have been read over and explained to me in simple Gujarati and I have fully understood the same.
(3) That the facts contained in Para Nos. 1 to 4 of the annexed application are true to my personal knowledge and the legal submissions contained therein are true to my belief.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
VERIFICATION
I, Arunbhai Tulsibhai Akbari S/o Late Shri Tulsibhai Ravjibhai Akbari, residing at Udaynagar – 1, Street No. 15, “Galaxy” Mavadi Main Road, Rajkot, the above- named deponent, do hereby make oath and verify that the contents of my above affidavit from Para Nos. 1 to 3 are true to my personal knowledge. Nothing material has been concealed and no part of it is false.
Date :- /08/2016 __________________________
Place :- Rajkot. Arunbhai Tulsibhai Akbari.
AMENDED CAUSE TITLE
BEFORE THE HON’BLE SENIOR CIVIL JUDGE
(Senior Division) COURT AT RAJKOT
Special Civil Application No. 136 Of 2015
1 Shri Tulsibhai Ravjibhai Akbari (Died During Pendency of Suit)
1/1 Arunbhai Tulsibhai Akbari
1/2 Ilaben Tulsibhai Akbari W/o Kaushikbhai Vora
1/3 Shri Hareshbhai S/o Tulsibhai Akbari
1/4 Shri Geetaben D/o Tulsibhai Akbari
LH of Late Manjulaben D/o Tulsibhai Akbari W/o Shivlalbhai Bhanderi
1/5 Shri Shivlalbhai Jivrajbhai Bhanderi
1/6 Shri Piyush Shivlalbhai Bhanderi
1/7 Shri Darshnaben Shivlalbhai Bhanderi
Plaintiff No 1/1 to 1/3
residing at Udaynagar – 1, Street No. 15, “Galaxy”
Mavadi Main Road, Rajkot 360 004.
Plaintiff No 1/4
residing at “Gunatit”, Master Society, street No, 12, Rajkot.
Plaintiff No 1/5 to 1/7
residing at “Shri Ram” Purnima Society Street No. 6, Block No. 33 – B Rajkot ..………Plaintiff
VERSUS
1. Shri Jayendrabhai Muljibhai Akbari.
2. Smt. Yoginiben Jayendrabhai Akbari.
3. Mr. Gaurav kumar Jayendrabhai Akbari.
4. Smt. Hansaben Rameshbhai Tilara.
5. Kum. Nirali Babubhai
Defendant No. 1, 2, 3, 4 and 5 Reside at
"Anugrah Appartment"
Janki Park, Nanamava,
Rajkot.
6. Mr. Arvindbhai Jasmatbhai Ramani.
7. Smt. Diwaliben Jasmatbhai Ramani.
8. Smt. Kashmiraben Jagabhai Dhaduk.
Defendant No. 4, 5 and 6 Reside at
Post Kamlapur, Taluka Jasdan, District Rajkot.
Rajkot.
9. Mr. Jagabhai Khimjibhai Dhaduk.
Defendant No. 7 Reside at
Post Santhali, Taluka Jasdan, District Rajkot.
Rajkot.
10. State of Gujarat
Through Chief Secretary,
Sachivalay, Gandhinagar.
Service through District Government Pleader,
Rajkot.
11. Collector Shree.
Office of the collector,
Rajkot District,
Rajkot. ………………………….Defendants
Sir,
I am filing CMA for this is it correct?
advocatepassy@gmail.com 971794
(Expert) 31 August 2016
Dear, this is free portal for advise. No one will have time to read your long orders posted above. I agree with Ms Usha Kapur
