1 wp7096.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7096 OF 2010 Syed Mazherullah Hashmi S/o Khairat Ali Hashmi Since deceased Through his L.Rs. Nahid Anjum W/o Mazherullah Hashmi and others ..PETITIONERS -VERSUS- Mohd. Mustafa Ali alias Suhaj S/o Iftekhar Ahmed Kazi and others ..RESPONDENTS ..... Mr.R.S. Deshmukh, advocate for petitioners. Mr. Y.M. Khan, advocate for respondent nos. 1 and 2. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 21st March, 2011. PER COURT : 1. Heard Advocates Mr. Deshmukh for petitioners and Mr. Khan for respondent nos.1 and 2. 2. Matter is placed before this Court in view of the earlier orders dated 16.03.2011 at the instance of Advocate Mr. Khan. Hence service upon other respondents (not contesting) is waived. 3. Short contention of Advocate Mr. Deshmukh for petitioner is, M.C.A. no. 20 of 2003 filed by respondent nos. 1 and 2 for restoration of earlier M.C.A. No. 20 of 2000 could not have been looked into on merits as it was beyond period of limitation and application at Exhibit-10 seeking condonation of delay was 2 wp7096.10 pending. Similarly, the application as filed was against the dead person and hence unless and until legal heirs are brought on record to prosecute that matter, matter could not have been looked into further by the trial Court. His contention is that ignoring this position and without passing any order on prayer for condonation of delay or then about legal heirs, the Misc. Application no. 20 of 2003 is allowed on merits and earlier M.C.A. no. 20 of 2000 is restored. 4. Advocate Mr.Khan for respondent nos.1 and 2 has filed affidavit in reply and is supporting the impugned order. 5. After hearing respective counsel, I find that the trial Court has to first decide the prayer for condonation of delay at Exhibit-10 and therefor it has to find out whether the cause is represented before it by any person. If such person is not there, then it has to consider the prayer for bringing on record the legal heirs. After the legal heirs are brought on record, the trial Court can then take appropriate decision. 6. As that has not been done and application at Exhibit-10 for condonation of delay and also application for substitution of legal heirs on record is still pending, therefore, the impugned order passed on 07.07.2009, is unsustainable. 7. At this stage, Mr. Deshmukh has pointed out that the application at Exhibit-28 for permission to bring legal heirs on record is disposed of on 07.07.2009 as premature. Perusal of the said order shows some confusion. Unless and until the respondents are represented before the trial Court, no decision on 3 wp7096.10 prayer for condonation of delay and for restoration can be taken. 8. In this situation, the trial Court shall decide the application for condonation of delay and application seeking leave to bring on record the legal heirs together first and thereafter depending upon that decision shall proceed to hear M.C.A. no. 20 of 2003. 9. Writ Petition thus allowed. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp7096.10