1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2991 OF 2009 Rangrao Krishna Patil (since deceased) 1a Smt.Akkatai Rangrao Patil ...Petitioner vs. 1 Banutai Yashwant Patil (since deceased) 1a Vilas Yashwant Patil ...Respondent Mr.Bhushan Walimbe for the petitioner Mr.M.M.Deshmukh i/b Mr.Vikas Mali for Respondent Nos.1A to 1D, 2 and 4. CORAM :A.S.OKA,J. DATE : AUGUST 20, 2009 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent Nos.1A to 1D, 2 and 4. For the purpose of this writ petition the respondent nos.5 and 6 are not necessary parties. The respondent no.3 is dead and the respondent nos.1A to 1D and 2 are the legal representatives of the deceased respondent. The petition is taken up for final disposal. 2 The predecessor of the petitioner was the original plaintiff. The suit filed by him was dismissed. The original plaintiff preferred an appeal. He died during the pendency of the appeal on 5th February 2007. The first respondent in the appeal (first defendant) died on 7th July 2007. On 19th November 2007, the District Court 2 passed an order of abatement of the appeal. On 12th December 2007, the petitioner applied for setting aside the abatement and for bringing on record the legal representatives of the deceased appellant and the first respondent in the appeal. By the impugned order, the said application has been rejected by the District Court by holding that there is no exlanation for delay. 2 The learned counsel for the petitioners submitted that the District Court has taken hyper-technical approach and there was sufficient explanation for delay and the same ought to have been condoned. The learned counsel for the contesting respondents states that there is absolutely no explanation whatsoever for condonation of delay and therefore, the District Court was justified in rejecting the application. 3 I have given careful consideration to the submissions. The predecessor of the petitioners died on 5th February 2007 and the original first defendant died on 7th July 2007. An application for setting aside the abatement was moved on 12th December 2007. 4 I have perused the application made by the petitioners. One of the grounds taken for delay is that after the petitioners were informed that they will have to apply for bringing their names on record, they learnt 3 that the 1st respondent in the appeal had expired. Therefore, petitioners decided to make a composite application. It is contended that the petitioners could not get the information about the heirs of the deceased respondent no.1 in the appeal and therefore there was a delay. 5 While dealing with the application like this, a liberal and justice oriented approach is contemplated. It cannot be said that there was any deliberate delay or negligence on the part of the petitioners. This was a case where the application made by the petitioners ought to have been allowed. Prejudice which may be caused to the respondents could have been compensated by ordering payment of costs. Considering the facts of the case, the amount of costs is quantified at Rs.3,500/-. 6 Hence, I pass the following order : i) Impugned Judgment and Order is quashed and set aside. ii)Misc.Civil Application no.55 of 2007 preferred by the petitioner is allowed subject to the petitioners paying costs of Rs.3,500/- to the respondent Nos.1A to 1D, 2 and 4. Payment of costs will be a condition precedent. The amount of costs shall be paid to the said respondents or shall be deposited 4 with the District Court within a period of six weeks from today. iii)Writ Petition is allowed in above terms. JUDGE