GOKULBHAI CHATURBHAI CHAUDHARI Vs. JIVIBEN KIKABHAI KHEKHARBHAI

JUDGEMENT

(1.) THE present Civil Revision Application under section 115 of the Code of Civil Procedure has been preferred by the petitioners herein � original defendants to quash and set aside the impugned common judgement and order dated 23/08/2001 passed by learned Lower Appellate Court � learned Joint District Judge, Surat at Vyara below Exhs.22, 32 and 33, by which, learned Lower Appellate Court has dismissed the applications Exhs.32 and 33 filed by heirs and representatives of original appellant No.3 permitting them to be brought on record as heirs and legal representatives of original appellant No.3 in appeal and to set aside the abatement qua original appellant No.3 in appeal and learned Lower Appellate Court has allowed the application Exh.22 submitted by the respondent herein � original plaintiff to dismiss the Regular Civil Appeal No.65 of 1996 as a whole.

(2.) FACTS leading to the present civil revision application, in nutshell, are as under:

(3.) HAVING heard Mr.M.M.Tirmizi, learned advocate appearing on behalf of the petitioners herein and considering the impugned common order passed by learned Lower Appellate Court, it appears that as such no illegality has been committed by learned Lower Appellate Court in dismissing the applications Exhs.32 and 33 and even dismissing the appeal qua original appellant No.3 as having been abated and not setting aside the abatement qua appellant No.3 � original defendant No.3. So far as challenging the impugned common order passed by learned Lower Appellate Court below Exhs.32 and 33 rejecting the same is concerned, the said dispute is squarely covered by decision of the Hon'ble Supreme Court in the case of Balwant Singh (Dead) V/s. Jagdish Singh and others reported in AIR 2010 SC 3043; in the case of Lanka Venkateswarlu (D) by L.Rs. V/s. State of A.P. and others reported in AIR 2011 SC 1199 as well as Postmaster General and others V/s. Living Media India Limited and another reported in (2012)3 SCC 563. However, the impugned common order passed by learned Lower Appellate Court passed below Exh.22 dismissing the appeal qua appellant Nos.1 and 2 � original defendant Nos.1 and 2 cannot be sustained. It is to be noted that petitioner Nos.1 and 2 herein � original appellant Nos.1 and 2 in appeal � original defendant Nos.1 and 2 are owners of the land bearing Survey No.311 and appellant No.3 in appeal � original defendant No.3 was owner of land bearing Survey No.312 and, therefore, all the defendants were having separate and individual rights to contest the suit as well as appeal preferred before learned Lower Appellate Court. Under the circumstances when original appellant Nos.1, 2 and 3 were owners of the different and independent lands and even on the death of original appellant No.3 � original defendant No.3, rights of appellant Nos.1 and 2 in appeal � original defendant Nos.1 and 2 to sue or to continue with the appeal continues. Under the circumstances, learned Lower Appellate Court has materially erred in rejecting the application Exhs.32 and 33 and allowing application Exh.22 in dismissing the entire appeal as having been abated as a whole.