1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1390 OF 2009 Anant Narayan Thite ...Petitioner vs. Smt.Rukminibai Narayan Thite (since deceased) by her legal heirs and representatives ...Respondents Mr.V.S.Gokhale for the petitioner Mr.G.S.Godbole i/b Mr.A.B.Tajane for Respondent no.2 to 4 and 7 to 9 CORAM :A.S.OKA,J. DATE : AUGUST 14, 2009 P.C. 1 I have heard the submissions of the learned counsel for the parties on the earlier occasion. The petitioner in this writ petition under Article 227 of the Constitution of India is the original plaintiff. A suit was filed by the petitioner for partition in the court of Civil Judge Senior Division, Pune. An order of return of plaint was passed by the trial court. An appeal was preferred by the petitioner before the District Court. There was a delay in preferring the Appeal. Therefore, an application for condonation of delay was made by the petitioner. By the impugned order dated 25 th August 2008, the learned District Judge has rejected the application for condonation of delay. 2 2 The learned counsel for the petitioner has taken me through the impugned order. He pointed out that the application is rejected mainly on the ground that when the application for condonation of delay was filed, the opponent nos.1,5 and 6 were already dead. He submitted that a pursis was filed on record by the Advocate for the petitioner for pointing out that the legal representatives of the deceased opponent Nos.1 and 6 were already on record. He placed reliance on the pursis filed on 1 st August 2008 which is at Exh.24. He submitted that the learned District Judge has taken a hyper-technical view and has completely ignored the pursis which was filed by the petitioner which was on record. He pointed out that the copy of the pursis is annexed at Exh.G to the petition. He pointed out that in the said pursis it was stated that the legal representative of the opponent nos.1 and 6 were already on record and the opponent no.5 does not have by any legal representative. 3 The petition is opposed by the learned counsel for the respondents. It is submitted that though time was granted to the petitioner to bring on record the legal representatives of the opponents who were already dead, the petitioner did not avail of the said opportunity. The learned counsel for the respondents disputed the correctness of the averments made in the petition and the pursis which is referred to above. He submitted that 3 no interference is called for. 4 I have carefully considered the submissions. An appeal preferred by the petitioner-plaintiff was for challenging the order dated 4 th December 2006 passed by the trial court by which the plaint was ordered to be returned for presentation to the appropriate court. The appeal along with the delay condonation application was filed on 4 th August 2007. It was pointed out in the application for condonation of delay that the application for obtaining certified copy of the impugned order was filed on 26 th February 2007 and the certified copy was received on 10 th July 2007. It is stated that after receiving the certified copy, all the papers were handed over to an Advocate in the High Court for the purpose of preferring an appeal. After examining the papers, on 16 th July 2007, the Advocate opined that the appeal will lie before the District Court. After receiving the said advice the appeal was lodged before the District Court in August 2007. In the application for condonation of delay, the aforesaid facts have been disclosed and even the name of the learned Advocate has been disclosed. Going by the said averments made in the application for condonation of delay, sufficient cause was certainly made out by the petitioner. 5 The learned District Judge has observed that as the application was not made for bringing the heirs of the opponent nos.1,5 and 6 on record, the application for 4 condonation of delay was not tenable. The learned District Judge has not considered the pursis filed by the petitioner which was at Exh.24 in which it is stated that the heirs of the deceased opponent nos.1 and 6 were already on record and the deceased opponent 5 has died without leaving any heirs. The said pursis has not been taken into consideration by the learned District Judge. A sufficient cause was made out for condonation of delay. The issue whether the opponent no.5 has any surviving legal representatives or not will have to be kept open. 6 Hence, I pass the following order : i) Impugned Judgment and order dated 25 th August 2008 is quashed and set aside and the civil Misc. application no.69 of 2008 filed by the petitioner is allowed subject to the petitioner paying costs of Rs.7,500/- to the respondent nos.2 to 4 and 7 to 9. ii) The learned counsel for the petitioner stated that the amount of costs has been already paid to the Advocate on record for the concerned respondents. iii) The District Court will proceed with the appeal and decide the same in accordance with law. JUDGE