1 ca5243 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.5243 OF 1997 IN FIRST APPEAL ST.NO.10764 OF 1997 Sangita wd/o Rajender Kumar Dabrai & Anr. ...Applicants vs. Keshavlal Parsram Dabrai & Ors. ...Respondents Mr.Sandeep Waghmare i/b Ms Minakshi Misal for the applicants Ms R.C.Nichani for the respondent nos.2a and 2b. CORAM : A.S.OKA,J. DATE : MAY 5, 2011 P.C.: 1 Heard learned counsel for the applicants and the learned counsel for the respondent nos.2a and 2b. The learned counsel for respondent nos.2a and 2b submits that in view of the conditional order passed by this Court on 21st September 1998, the application stands dismissed as against the respondent nos.1,2,6,7 and 10. The learned counsel for the applicants submitted that in view of the order dated 21st September 1998, the application stood automatically dismissed as against the aforesaid respondents and especially as against the respondent no. 2. She submitted that the legal representatives of the respondent no.2 have been brought on record in the year 2007 without getting the application restored as against the respondent no.2. She submits that in the circumstances, application does not survive as against the respondent nos.2a and 2b who are the legal representatives of the respondent no.2. 2 She invited attention of the Court to the order 2 ca5243 dated 9th April 2008 passed by this Court which keeps the aforesaid issue open. She submitted that even otherwise there is no ground for condonation of delay. 3 I have considered the submissions. The date of the impugned decree is 2nd July 1996. The present application has been affirmed on 24th June 1997 and the same appears to have been filed on the same date. It is averred in the application that the Advocate for the applicants informed that he had instructed his Clerk to apply for the certified copies of the Judgment and Decree and the applicants will be informed as and when the certified copies will be ready. The applicants have stated in the application that after considerable time had lapsed, they requested their Advocate to personally look into the matter. When the Advocate enquired, it was found that only one application for certified copy of the Judgment was submitted. Therefore, an application was again made for obtaining certified copy of the Judgment and decree and after obtaining certified copy of the Judgment and decree, present appeal has been preferred. 4 Perusal of the record shows that when this civil application came up before the Court on 24th September 1998, time of one week was granted to take appropriate steps to serve notice to the unserved respondent nos. 1,2,6, 7 and 10. This Court observed that if appropriate steps are not taken within the aforesaid period, civil application will stand dismissed as against the aforesaid respondents. Office remark shows that the first respondent was already represented by an Advocate. There is no office remark that no steps have been taken for effecting service of notice to respondent no.2. The farad sheet records that notice was issued by RPAD to the respondent nos.1 to 3,5, 7 and 10. the further office 3 ca5243 remark shows that by order dated 24th August 2002 of the Additional Registrar, the application stands dismissed as against respondent nos.1 and 3, 5 and 10 for want of prosecution. By a separate order dated 30th January 2003 of the Registrar, the application stood dismissed against the respondent no.9. The respondent no.2 expired on 25th June 2000. It is pertinent to note that time of one week was granted to take steps for effecting service and not for actually effecting the service. There is no office remark that steps were not taken as against the respondent no.2 within the stipulated time. 5 Subsequently, after death of respondent no.2, civil application no.6695 of 2007 was filed for bringing on record the legal representatives of the deceased respondent no.2. Thereafter, legal representatives of the respondent no.2 were brought on record and they were served with the notice. Hence, it is not possible to accept the said contention that in view of the conditional order dated 21st September 1998, this application stood dismissed as against the respondent no. 2. 6 In view of the averments made in the application, sufficient cause is made out for condonation of delay. Delay is accordingly condoned in terms of prayer clause (a). Applicants will pay costs of this application to respondent nos.2a and 2b quantified at Rs.10,000/-. The amount of costs to be paid within a period of six weeks from today. Payment of costs will be a condition precedent. It is made clear that as this application stands dismissed as against some of the respondents even the appeal stands dismissed as against the said respondents. 4 ca5243 7 The legal effect of dismissal of the appeal as against the said respondents will be considered at the stage of admission of the appeal. JUDGE