1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.10595 OF 2007 IN CIVIL APPLICATION NO.10596 OF 2007 IN WRIT PETITION NO. 3310 OF 1995 Mr. Sanket S.Kulkarni, Advocate holding for Mr. V.T. Choudhari, Advocate for applicants. Mr. N.H.Borade, A.G.P. for State. Mr. S.P. Shah, Advocate for respondent nos. 2-A to 2-G. [ CORAM : V.R.KINGAONKAR, J. ] DATE : 10/02/2010 PER COURT : 1. These are the applications for setting aside the abatement order and allowing substitution of the legal representatives of the deceased petitioner and the respondent no. 2. 2. The petitioner claimed to be in possession of the land in question as a tenant. The deceased respondent no. 2 was land-lord. The deceased petitioner challenged orders of the authorities regarding direction to restore the land in favour of the deceased respondent no. 2 i.e. the land-lord. The respondent no. 2 died on 14/7/2003 during the pendency of the suit. Information was given to this court by filing an application for substitution of the legal representatives by the legal representatives themselves. However, their application was not entertained. It appears that direction was given to the deceased 2 petitioner to take steps and, therefore, the counsel communicated by a letter to the deceased petitioner for taking of due steps to substitute the legal representatives of the deceased respondent no. 2 Babulal. 3. A letter addressed to the deceased petitioner was returned with an endorsement that he was no more. The petition was, therefore, dismissed and abated. 4. Now, the legal representatives of the deceased petitioner have filed these applications alleging that they were not aware about pendency of the Writ Petition filed by the deceased petitioner. They would submit that they came to know about the pendency of the Writ Petition when they contacted their Advocate after receiving the communication on subsequent date. They approached their local lawyer but after-words he too died. Consequently, there was delay in filing the application for substitution. They submit further that there was no intention to cause the delay and protract the hearing of the petition. 5. Heard learned counsel for the parties. 6. There can not be any doubt that the applications are filed after considerable delay of 3169 days. The question, however, is, : “ Whether the legal representatives were aware of the pending Writ 3 Petition ? ” Practice, normally, is that after Rule is issued, there is hardly any communication between the counsel and the petitioner until some interim application is filed or the petition is ripe for final hearing. In the present case, there was hardly any occasion for the counsel to contact the legal representatives of the deceased petitioner because the petition was not enlisted for final hearing till recently. It was only after the death of the respondent no. 2 that the counsel communicated to the deceased petitioner about need to file application for substitution of the legal representatives of the deceased respondent no. 2. It appears that the counsel was unable to pursue the matter because the envelop addressed to the deceased petitioner was returned to him. He bonafidely produced the said envelop and the communication when the dismissal order was passed. The letter ( “ X ” ) shows the attempt of the counsel to seek instructions for substitution of the legal representatives of the deceased respondent no. 2. Needless to say, there was no intentional delay caused by the applicants. It was only due to lack of knowledge about pendency of the petition that the application for substitution of the legal representatives could not be filed. 7. In Ganeshprasad Badrinarayan Lahoti (D) by L.Rs. V/s Sanjeevprasad Jamnaprasad Chourasiya and another – (2004) 7 Supreme Court Cases 482, the Apex Court held that technical approach in such matters should be avoided. It is held that absence of knowledge 4 to the legal representatives about pendency of the matter can be regarded as a sufficient cause for the delay. So also, in Keshao S/o Kawadu Maral and another V/s State of Maharashtra and others – 2005 (1) Mh.L.J. 1059, similar view is expressed. 8. Considering the reasons stated in the applications, I am inclined to hold that there was sufficient cause for filing the applications at belated stage. The applicants can not be seriously blamed for the delay. Hence, the delay is condoned subject to payment of costs of Rs. 2,000/- (Rupees Two Thousand only) which shall be paid within two (2) weeks i.e. 24/2/2010. If the costs are deposited/paid to the counsel for the other side within the given period, the order of abatement shall stand set aside. In such a case, the legal representatives of the deceased petitioner shall be substituted in his place and the legal representatives of the deceased respondent no. 2 shall be substituted in his place by effecting suitable amendment. If the costs are deposited within two (2) weeks and the legal representatives are taken on record, then the petition be placed for final hearing on 9/3/2010. Both the Civil Applications are disposed of. [ V.R.KINGAONKAR ] JUDGE knp/CA 10595...07 in WP 3310.95 5