1 WP 4515.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4515 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. V.B.Patil,Advocate for the Petitioner. Mr. P.S.Shendurnikar, Advocate for Resp.No. 1 .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 30/06/2011 PER COURT : 1. Heard the learned counsel for the respective parties. 2, The Suit was instituted by Smt. Vanabai Sitaram Sutar for declaration against the present petitioner. Said Smt. Vanabai died on 22/10/2008. An application was made seeking time to bring legal representative on record on 7/2/2009. The said application was rejected. However, on the very same day, an application ( Exh. 23 ) was filed seeking amendment in the plaint that the original plaintiff Vanabai to be represented by the legal representative Dagdu Sitaram Sutar. The said application is allowed. 2 WP 4515.2011 Aggrieved thereby, the petitioner has filed the present Writ Petition. 3. Mr. Patil, the learned counsel for the petitioner submits that once the plaintiff died then after the lapse of 90 days, the Suit already stood abated. As such, no amendment could have been made in such a Suit. The Court could not have invoked Order XXII Rule 10 or Order I Rule 10 or Order VI Rule 17 of the Code of Civil Procedure [ For short, ‘ the Code ’ ] for allowing the said application. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Jayalaxmi Nanardhan Walawalkar & Oths. V/s Lilachand Laxmichand Kapasi & Oths. reported in 1998 ( 3 ) Mh. L.J. - 618 and another Judgment of the learned Single Judge of this Court in the case of Akkatai Kaka Devkule & Oths. V/s Bali Rama Devkule reported in 1997 ( 99 ) BOMLR – 556. The learned counsel contends that the law is well settled in view of the aforesaid citations and the learned trial Court has committed error in setting aside the abatement while entertaining the said application. 4. Mr. Shendurnikar, the learned counsel for the respondent submits that though the application 3 WP 4515.2011 stated about amendment, it was in effect for bringing the legal representatives on record. Application ( Exh. 22 ) was filed for seeking time to bring the legal representatives on record and application ( Exh. 23 ) was filed, wherein it was stated that amendment is to be made with the effect that the plaintiff Vanabai Sitaram Sutar is to be represented by the legal representative Dagdu Sitaram Sutar. When an application is filed for bringing the legal representative, the prayer for setting aside abatement is implicit in it. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Ram Dulari Wd/o Kitla Prasad Tiwari & Oths. V/s Maniram Ram Prasad Tiwari & Oths. reported in 2005 ( 1 ) Mh. L.J. - 77. 5. There can not be any debate on the proposition that if the legal representatives are not brought on record within the stipulated period, one can not resort to the provisions of Order I Rule 10 or Order XXII Rule 10 of the Code. In the present case, though the tenor of the application shows that the amendment was being sought, but from the perusal of the said application minutely, it says that the name should be amended of plaintiff as Dagdu Sitaram being the legal 4 WP 4515.2011 representative of the plaintiff. In effect, the said application was for bringing the legal representative on record, though may not have been happily worded. The trial Court has properly construed the said application as an application for bringing legal representative on record and in such an application setting aside of an abatement is implicit. There is not much delay in filing an application as the plaintiff died on 22/10/2008 and the instant application is filed on 7/2/2009. 6. In light of the above, no case is made out for interference in the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The Writ Petition as such is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 4515.2011