1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8550 OF 2009 Sakharam s/o Madhavrao Kahalekar, age: 60 years, Occ: Agri., R/o Lalwandi, at present Naigaon, Tq.Biloli, District Nanded. Petitioner Versus 1 Nagorao Gouraji Nikalpure, age: 45 years, Occ: Agril., R/o Lalwandi, Tq.Biloli, District Nanded. 2 Pundlik s/o Bapuji Kure, (died) through L.Rs.: 2/1 Gangadhar s/o Pundlik Kure, age: 45 years, Occ: Agril., R/o Takbid, Tq.Naigaon, District Nanded. 2/2 Sambhaji Pundlik Kure, age: 37 years, Occ: Agril., R/o as above. 2/3 Panchfulabai w/o Kerba Bomnale, age: 35 years, Occ: Household, R/o Lalwandi, Tq. Naigaon, District Nanded. 2/4 Rajabai w/o Laxmanrao Honshette, age: 33 years, Occ: Household, R/o Dongaon (Kd), Tq. Biloli, District Nanded. 2/5 Nilavatibai w/o Rangrao Hale, age: 30 years, Occ: Household, 2 R/o Mnoor, Tq. Umri, District Nanded. 2/6 Chandrakalabai w/o Digambar Abhange, age: 28 years, Occ: Household, R/o Mangnali, Tq. Kandhar, District Nanded. Respondents Mr.U.B.Bilolikar, advocate for the petitioner. Mr.A.M.Gaikwad, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 22nd March, 2010. ORAL JUDGMENT: 1 Heard Shri U.B.Bilolikar, learned Counsel for petitioner and Shri A.M.Gaikwad, learned Counsel for Respondents. Rule, made returnable forthwith and heard finally by consent of the parties. 2 An application presented by petitioner – original plaintiff requesting the Court to permit him to bring on record legal heirs of deceased defendant no.2 by condoning delay occurred in presenting application came to be turned down by the trial Court and said order dated 02.11.2009, passed below Exhibit-128 in R.C.S. No.243/1991 is subject matter of challenge in this petition. 3 Plaintiff – petitioner herein presented suit against respondents – original defendants claiming declaration of ownership and recovery of encroached area to the extent of 30 ares. It appears that, during pendency 3 of suit, defendant no.2 died. In fact, plaintiff himself presented pursis informing the Court as regards death of concerned defendant, however, application for bringing on record legal heirs of deceased defendant was not presented. Application was presented after lapse of about four years. The trial Court, considering application as well as considering objection raised by defendants, rejected the application. 4 I have perused the application as well as impugned order passed by the trial Court. It is contended by petitioner – original plaintiff that he was not aware of names of legal heirs of deceased defendant no.2 and after ascertaining particulars of legal heirs, he approached the Court with application. It is contended that entitlement of the plaintiff to immovable property is subject matter of suit. 5 Considering contentions raised by learned Counsel for respective parties, I am of the opinion that in the facts and circumstances of the case, application presented by petitioner – original plaintiff ought to have been considered favourably by the trial Court. Inconvenience caused to the other side can be compensated by awarding costs. Plaintiff himself, by causing delay in approaching the Court, is not likely to be benefitted. In this view of the matter, I am of the view that order passed by the trial Court needs to be quashed and set aside, however, subject to imposition of condition in respect of payment of costs. 6 In the result writ petition is allowed. Order dated 02.11.2009, passed by Civil Judge, Junior Division, Naigaon (Bazar), below Exhibit-128 in Regular Civil Suit No.243/1991, is quashed and set aside. Application presented by petitioner – plaintiff requesting the Court to permit him to bring 4 on record legal representatives of deceased defendant no.2 shall be deemed to have been allowed. Delay occurred in presenting application before the trial Court shall be deemed to have been condoned. Petitioner shall deposit cost of Rs.5000/- (Rs.Five thousand) before trial Court within a period of six weeks from today. On deposit of amount of cost by the plaintiff, defendants shall have liberty to withdraw same. 7 Rule is accordingly made absolute. (R.M.BORDE) JUDGE ******* adb/wp855009