1 C.A.No.5266/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL APPLICATION NO.5266 OF 2011 IN WRIT PETITION NO.4553 OF 1996. Manaji Savleram Kambale, since deceased thorugh L.Rs. Ashok Manaji Kamble and others ... Applicants. Versus Balasaheb Ramkrishna Gaikwad, and others. ... Respondents. ... Mr.S.S.Kulkarni, advocate holding for Mr.S.D.Kulkarni, advocate for the applicants. Mr.P.M.Shah, senior counsel for the Respondents. ... CORAM : S.V.GANGAPURWALA,J. Date : 24.06.2011. PER COURT : 1. Heard. 2 C.A.No.5266/11 2. At the outset, Mr.Kulkarni, learned counsel for the applicants seeks leave to amend. Leave granted. 3. The present applicants are the legal heirs of original petitioners who had initially filed an application U/s 32-E of the Bombay Tenancy and Agricultural Lands Act, which was rejected. The appeal against the same was dismissed. The present Writ Petition is arising out of the said proceedings. 4. The original petitioner died on 2.8.2004. Thereafter, the Civil Application was filed by the present Respondents in July 2005, seeking directions from the Court that the Writ Petition stands abated on account of the death of the petitioner. The said Civil Application was not moved and eventually it was listed on 15.7.2010. On the said date, pursuant to the order passed in the said Civil Application, the Writ Petition was dismissed as abated. The present Civil Application is filed for condoning the delay in filing the application for setting 3 C.A.No.5266/11 aside the abatement and for bringing the L.Rs. on record and so also for restoration of petition to its original position. 5. Mr.Kulkarni, learned counsel for the applicants submits that in fact, the legal heirs of the petitioner were not aware of the pendency of the Writ Petition. Their father who was the original petitioner was looking after the proceedings. The applicants are illiterate persons and are rustic villagers. The applicants got the knowledge of the pendency of this proceedings for the first time when the applicants received a notice from the Sub- Divisional Officer dated 17.3.2011, asking the applicants to remain present as the Writ Petition No.5553/1996 is disposed of. Thereafter, the present application has been filed on or about 30.4.2011. According to the learned counsel as the applicants did not have the knowledge of the pendency of the present proceedings, the application could not be filed earlier. There is no intentional delay on the part of the applicants. Mr.Kulkarni, learned counsel relies 4 C.A.No.5266/11 on the judgment of the Apex Court in a case of "Ram Nath Sao @ Ram Nath Sahu and others Vs. Gobardhan Sao and others" (2002) 3 SCC 195. 6. Per contra, Mr.Shah, learned senior Counsel for the non-applicants submits that it is a case of inordinate delay. Because of the delay the rights have been accrued to the non- applicants. The matter was regarding the right of the petitioner to purchase the property U/s 32-P of the Bombay Tenancy and Agricultural Lands Act. It can not be assumed that the applicants did not have the knowledge of the proceedings pending as even their names were mutated in the revenue record in March 2005 in place of their father the original petitioner. The learned counsel further contends that when counsel of the original petitioner had sent the letter in the year 2005 itself, and it had come back then the applicants certainly would have inquired about the same. This shows that they were not diligent and negligence can not be a ground to condone the delay. The learned counsel relies on the judgment of the Apex Court in a case of "Pundlik 5 C.A.No.5266/11 Jalam Patil (Dead) by L.Rs. Vs. Executive Engineer, Jalgaon Medium Project and another" reported in (2008) 17 Supreme Court Cases 448. 7. The dispute between the parties is regarding the right of the tenant to purchase the property in view of Section 32P of the Bombay Tenancy and Agricultural Lands Act. The same is an invaluable right. The applicants are the legal heirs of the original petitioner who was a tenant. The applicants in their application have categorically averred that their father was looking after the proceedings in the Writ Petition and the legal heirs did not have any knowledge about the pendency of the Writ Petition. The said averment has not been controverted by the Respondents even in the affidavit-in-reply filed by them. As can be seen, the applicants are rustic villagers, residing in rural village, it can not be expected that they would know the pendency and the progress of the Writ Petition, that too when their father the original petitioner was looking after the proceedings. 6 C.A.No.5266/11 8. It is a trite law that abatement has to be strictly construed and an application for setting aside abatement has to be liberally construed. There is nothing on record even to suggest that the applicants had the knowledge of the pendency of the present proceedings. The Respondents have not been in a position to show that prior to the receipt of the notice dated 17.3.2011, issued by the Sub-Divisional Officer in which the reference of the dismissal of Writ Petition filed by the applicants' father was made, the applicants, had, any knowledge of the pendency of the present Writ Petition. Even the Respondents have not been in a position to point out any source of knowledge of the applicants in that regard. After the receipt of the said notice, the applicants moved this application immediately without any further delay. 9. No doubt, there is a delay in filing the application but the same can not be attributed to the applicants nor it can be said that it was an intentional or willful act of the applicants in non-filing of the application 7 C.A.No.5266/11 earlier. The judgment of the Apex Court in a case of "Pundlik Jalam Patil (Dead) by L.Rs. Vs. Executive Engineer, Jalgaon, Medium Project and another" referred supra was regarding the delay caused in filing appeal and wherein because of the delay caused, some right was accrued in favour of the Respondents. Here in the present case the Writ Petition was admitted and pending for final hearing. It can not be said that because of the pendency of the Writ Petition and non-bringing of the legal heirs earlier, the delay has been caused in prosecuting the Writ Petition. The Apex Court in a case of Ram Nath Sao @ Ram Nath Sahu and others Vs. Gobardhan Sao and others" referred supra has observed as under: "8. In the case of Sital Prasad Saxena (dead) by L.Rs. Vs. Union of India and others" MANU/SC/0294/1984: [1985] 1 SCR 659, the Court was dealing with a case where in a second appeal, appellant died and application for substitution after condonation of delay and setting 8 C.A.No.5266/11 aside abatement filed after two years by the heirs and legal representatives was rejected on the ground that no sufficient cause was shown and the appeal was held to have abated. When the matter was brought to this Court, the appeal was allowed, delay in filing the petition for setting aside the abatement was condoned, abatement was set aside, prayer for substitution was granted and High Court was directed to dispose of the appeal on merits and while doing so, it was observed the once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing inasmuch as in a traditional rural family the father may not have informed his son about the litigation 9 C.A.No.5266/11 in which he was involved and was a party. It was further observed that Court should recall that "what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties." (Emphasis added). 10. In view of the above conspectus of the matter, I allow the application by condoning the delay in filing application for restoration and bringing legal heirs on record. The Civil Application is allowed in terms prayer clauses (B) and (B1). Taking into account the nature of the dispute, fix the Writ Petition for final hearing in the week commencing from 11.7.2011. (S.V.GANGAPURWALA,J.) asp/office/Ca5266.11 10 C.A.No.5266/11