1 W.P.No.3447/10 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3447 OF 2010. 1. Bhagwan S/o PUnjaji Mijagar, Age 54 years, Occ.Agri., R/o Newarwadi, Tq. Hadgaon, Dist. Nanded. 2. Balaji S/o Punjaji Mijagar, Age 35 years, Occ.Agri., R/o Newarwadi, Taluka Hadgaon, Dist.Nanded. 3. Smt.Krashnabai W/o Punjaji Mijagar, Age 85 years, Occ. Household, R/o Newarwadi, Tq.Hadgaon, Dist. Nanded. 4. Smt.Dropadabai W/o Digambar Godgeere, Age 60 years, Occ. Household, R/o Dongargaon, Tq.Hadgaon. 5. Sow. Panchphulabai W/o Anandrao Sukapure, Age 57 years, Occ. Household, R/o Newarwadi, Tq.Hadgaon. 6. Sow. Kamal W/o Ramkishan Bhusnar, Age 40 years, Occ. Household, R/o Gopa, Tq. Gangakhed, Dist.Parbhani. 7. Sow.Nilabai W/o Pundlik Kugane, Age 30 years, Occ. Household, R/o Eeelad Tq. Gangakhed, Dist.Parbhani. 2 W.P.No.3447/10 8. Smt.Rakhmabai W/o Baban Mijagar, Age 40 years, Occ. Household, R/o Newarwadi, Tq. Hadgaon, Dist.Nanded. 9. Sow. Mirabai W/o Prakash Godgeere, Age 25 years, Occ.Household, R/o Dongargaon, Tq.Hadgaon, Dist.Nanded. ... Petitioners. Versus 1. Subhabai Keep of Raiji, Age 67 years, Occ.Household, R/o Newarwadi, Taluka Hadgaon, Dist.Nanded. 2. Baburao Illegitimate son of Raiji, Age 38 years, Occ. Labourer, R/o Newarwadi, Tq.Hadgaon, Dist.Nanded. ... Respondents. ... Mr.Amol S.Gandhi, advocate for the petitioners. Mr.M.R.Jamdhade, advocate for the Respondent Nos. 1 and 2. ... CORAM : S.V.GANGAPURWALA,J. Date : 18.07.2011. ORAL JUDGMENT : 1. Heard. 3 W.P.No.3447/10 2. Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing. 3. One Punjaji has filed Civil Suit bearing RCS No.41/1976 for declaration of ownership and possession. The present Respondents in earlier point of time filed Civil suit in respect of the same property. 4. The suit filed by Punjaji against the present Respondents came to be stayed vide order dated 13.10.1980 U/s 10 of the C.P.C. and till this date the said suit is stayed. 5. Punjaji died on 2.5.2005. The present petitioners filed an application on 18.12.2008 for setting aside abatement and bringing them on record, by condoning the delay. The said application was resisted by the present Respondents. The trial Court rejected the application of the present petitioners. Aggrieved thereby, the petitioners filed the 4 W.P.No.3447/10 present petition. 6. Mr.Amol Gandhi, learned counsel for the petitioners submits that the petitioners were not aware of the pending litigation. It is only when they received the notice of the proceedings in respect of the suit filed by the present Respondents on or about December 2007, they came to know about the present suit being filed and thereafter after collecting the necessary information the instant application was filed. The learned counsel contends that Punjaji at no material point of time had discussed about the pendency of the present suit with the applicants. The learned counsel further contends that the dispute is regarding an immovable property and as such the application ought to have liberally construed. 7. Mr.Jamdhade, learned counsel for the Respondents vehemently opposes the petition and submits that false and frivolous grounds have been raised by the petitioners. The petitioners have not even produced the copy of the notice on 5 W.P.No.3447/10 record to show that on a particular date, they got the knowledge of the proceedings. So also there is no proof regarding the presence of Bhagwan before the Court on 14.12.2007. The learned counsel contends that there is inordinate delay in filing the application. There is no sufficient cause stated in the application. 8. It is settled proposition of law that abatement has to be strictly construed, whereas an application for setting aside abatement has to be liberally construed. The suit is stayed since the year 1980. Today also the said suit is stayed. The suit is for possession. As such the petitioners would not be benefited by delay. It is a fact that only Punjaji was the plaintiff in the said suit. The petitioners have stated that Punjaji at no material point of time has informed them about the proceedings. In such circumstances,the statements of the petitioners that they were not having knowledge of the proceedings can not be disbelieved. Even the petitioner No.1 has stepped into the witness box to depose these facts. 6 W.P.No.3447/10 9. Taking into account the above conspectus, the learned trial Judge while rejecting the application has taken a hyper technical approach. The application should have been allowed by imposing some costs. 10. In the result, the impugned order is quashed and set aside and application Exh.15 is allowed. The applicants are allowed to be brought on record as heirs of the plaintiff in RCS No.41/1976 subject to payment of cost of Rs. 3,000/- (Rupees three thousand) to the Respondents within a period of four (4) weeks from today. 11. The Writ Petition is accordingly disposed of. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp344710 7 W.P.No.3447/10