cao108.11.odt 1/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLN. (O) NO.108/2011 IN CIVIL APPLN.(O) NO.109/2011, CIVIL APPLN. (W) NO.146/2010, CIVIL APPLN. (W) NO.145/2010, CIVIL APPLN. (W) NO.1584/2011, & C.A.(W) NO.949/2011 IN WRIT PETN. NO.754/2004 (D) Narayan Janardhan Pitale -vs- Shashank Pandurang Pande and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri A. B. Moon, learned counsel for the applicants. Shri Ambilwade, learned counsel for the respondent No.1. Shri Aurangabadkar, learned counsel for the respondent No.2(iii), 3 (a) to (d). CORAM : R. M. SAVANT, J. DATED : 29/07/2011. CIVIL APPLN. (O) NO.108/2011 By the above Civil Application the applicant seeks condonation of delay of 328 days in filing the application for restoration of Writ Petition No.754/2004, which has been dismissed by order dated 14/12/2009 for want of prosecution on account of the non removal of office objections. cao108.11.odt 2/6 The above Civil Application has been filed by the heir of the original petitioner-Narayan Janardhan Pitale, who expired on 22/12/2008. The applicant is the elder sister of the said Narayan Janardhan Pitale. The cause for the delay of 328 days has been mentioned in the Civil Application. The sum and substance of the reasons is that the heirs were not aware of the proceedings being filed by the said Narayan Janardhan Pitale, since the proceedings were being prosecuted by a power of attorney holder Shri Ravi Kamlakar. Thereafter the applicant and the other heirs took sometime to gather knowledge of the proceedings as well as to get the relevant papers. In the said process the delay of 328 days has occasioned. The above Civil Application has been opposed on behalf of the respondent No.1 by filing an affidavit in reply. It is sought to be contended in the said affidavit that the petitioner Narayan Janardhan Pitale was a fictitious person and actually the proceedings are being conducted by one Chandrakant Janardhan Pitale. This statement is on the basis of the statement made on behalf of the petitioner in the cross- examination. In view of the said stand taken by the respondents, the learned counsel for the applicant was asked whether he has the death certificate of said Narayan Janardhan Pitale i.e. the original petitioner. The learned counsel for the applicant tendered the death certificate of the said Narayan Janardhan Pitale, issued by the Akola Municipal Corporation, which inter alia discloses that the said Narayan Janardhan cao108.11.odt 3/6 Pitale expired on 22/12/2008. The death certificate is marked as “X” for identification. Prima facie, therefore, there is no reason to come to a conclusion that the said Narayan Janardhan Pitale was a fictitious person. It is well settled by catena of judgments of the Apex Court as well as this Court that in the matters of condonation of delay a hyper technical and pedantic approach should not be taken and approach which furthers the cause of substantial justice should be adopted. There is a delay of 328 days in filing the application for restoration. For the inconvenience, if any, caused to the respondent No.1 on account of the said delay, he can be adequately compensated. In that view of the matter, the above Civil Application is required to be allowed and is accordingly made absolute in terms of the prayer in the above Civil Application. The applicant to pay costs of Rs.3,000/- to the respondent No.1 within a period of two weeks from date. Only upon the said costs being paid, the benefit of the said order would enure to the applicant. If the said costs are not paid and evidence thereof is not placed on record in the above proceedings, the application would be deemed to have been dismissed. CIVIL APPLN.(O) NO.109/2011 By the above Civil Application, the applicant seeks condonation of delay of 259 days in filing the application for cao108.11.odt 4/6 bringing the legal heirs of the petitioner on record. The reasons therefor are mentioned in the Civil Application. The respondent No.1 has filed affidavit in reply, opposing the said application. In the said reply, the objection is the same as is taken in the reply filed in Civil Application (W) No.108/2011. In my view, since Civil Application (W) No.108/2011 has already been allowed, the above Civil Application is also required to be allowed. By accepting the said reasons mentioned in the Civil Application for delay, the Civil Application is made absolute in terms of the prayer in the Civil Application. The applicant to pay costs of Rs.3,000/- to the respondent No.1 within a period of two weeks from date. Only upon the said costs being paid, the benefit of the said order would enure to the applicant. If the said costs are not paid and evidence thereof is not placed on record in the above proceedings, the application would be deemed to have been dismissed. CIVIL APPLN. (W) NO.146/2010 By the above Civil Application the applicants pray for bringing them on record in place of the original petitioner. The relationship of the applicants with the petitioner is mentioned in paragraph No.2 of the Civil Application. The names of the heirs are mentioned in paragraph No.1. By an cao108.11.odt 5/6 order passed today, the delay in filing the above Civil Application for bringing the heirs on record has already been condoned, the above Civil Application is therefore required to be allowed and is accordingly allowed. Resultantly, the heirs mentioned in paragraph No.1 are permitted to be brought on record. The learned counsel for the applicant to carry out amendment in the cause title of the petition within a period of two weeks from date. The amended copy to be served on the respondents. The Civil Application is accordingly disposed of. CIVIL APPLN. (W) NO.145/2010 By the above Civil Application, the applicant prays for setting aside abatement, in view of the death of the original petitioner. By an order passed today in Civil Application (W) No.146/2011 for bringing the legal heirs on record has already been allowed. Resultantly the above Civil Application would have to be allowed and is accordingly allowed. The abatement qua the petitioner is consequently set aside. The above Civil Application is accordingly disposed of. CIVIL APPLN. (W) NO.1584/2011, By the above Civil Application, the applicant seeks to bring the heirs of one Keshao Janardhan Pitale, who is one of the heirs of the original petitioner. The said Keshao Janardhan cao108.11.odt 6/6 Pitale has died on 8th June, 2011. The Civil Application is therefore allowed. The heirs of the said Keshao Janardhan Pitale are accordingly allowed to be brought on record. The learned counsel for the applicant to carry out amendment in the cause title within a period of two weeks from date. The above Civil Application is accordingly disposed of. C.A.(W) NO.949/2011 By the above Civil Application, the applicant seeks deletion of legal heir No.3-Chandrakant Janardhan Pitale of the original petitioner from the cause title, who has expired on 06/03/2011. The Civil Application is accordingly allowed. The name of the legal heir No.3 Chandrakant Janardhan Pitale is deleted. The above Civil Application is accordingly disposed of. JUDGE KHUNTE