1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4279 OF 2009 Shantaram s/o Bala Bhand & others .. PETITIONERS VERSUS Baban s/o Shankar Bhand & another .. RESPONDENTS Mr. L.V. Sangit, Advocate for the petitioners. Mr. G.V. Wani, Advocate for respondent nos. 1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 7th APRIL, 2010 PER COURT : 1 An application tendered by the respondents / appellants in Regular Civil Appeal no. 922/2000 requesting the court to permit him to bring on record the legal heirs of deceased petitioner / original plaintiff on condoning delay occurred in presenting the application has been allowed by the first appellate court in view of the order passed on 16-1-2009 and said order passed by the Ad hoc District Judge -1, Sangamner in pending appeal is subject matter of challenge in this petition. 2 2 Petitioners / original plaintiffs instituted suit bearing Regular Civil Suit no. 418/1879 claiming possession of the suit property. After proper contest, the suit was decreed by the trial court and the said decree passed by the trial court is subject matter of challenge in Regular Civil Appeal no. 21/2000 (re-numbered as 922/2000) pending in th court of Additional District Judge, Sangamner. In pending appeal, respondent no. 1 / original plaintiff presented application contending that the father of the petitioner / original plaintiff has died on 21-2-2002 and his legal heirs are required to be brought on record. Respondent / original defendant therefore requested to permit him to bring on record the legal heirs of deceased plaintiff. Application seeking condonation of delay was presented on 24-3-2006. Both the applications were objected by the petitioners herein contending that there is no proper explanation tendered in respect of delay occurred in presenting the application. It is the contention of the petitioner that infact intimation as regards the death of original plaintiff was given on 20-8-2003 however, inspite of notice issued as contemplated by Order 22 of the Code of Civil Procedure, no steps are taken. It is further contended that the initially application seeking condonation of delay was not presented. However, only after the petitioner objected for consideration of the application tendered by the respondent / original defendant requesting the court for 3 permitting him to bring on record the legal heirs of deceased plaintiff, the application came to be presented at belated stage. It is contended that there is no proper explanation in respect of delay of three years. Trial court after considering the contentions raised by the original defendants / respondents herein as well as after hearing the proposed heirs of original plaintiff, was pleased to allow the application. 3 I have perused the application as well as the impugned order passed by the first appellate court. It is contended by the applicant / original defendant in the application that the defendant is an illiterate person and he is not accustomed with the procedural intricacies in the matter. It is further contended that the defendant is an aged person and the delay occurred in presenting the application is not intentional. The question of entitlement to the immovable property is subject matter of the suit and it is desirable that the appeal be heard on its own merits. Considering the contentions raised by the original defendant, the first appellate court has exercised discretion in allowing the application and permitted the legal heirs of deceased plaintiff / respondent no. 1 in the appeal being brought on record. The discretion exercised by the first appellate court in allowing the application need not be interfered by this court in exercise of extra ordinary 4 jurisdiction under Article 227 of the Constitution of India. It is also urged that the original defendant is not penalised for approaching the court late. Inaction on the part of the defendant has resulted in causing prejudice to the plaintiff. Inconvenience caused to the plaintiff, petitioner herein can be compensated by directing respondent no. 1 / original defendant to pay cost. Respondent no. 1 is directed to deposit amount of Rs.3,000/- towards cost before the first appellate court within four weeks from today. On deposit of cost, the petitioners / original plff. shall be entitled to withdraw the same. The first appellate court is directed to decide the appeal expeditiously. No interference is called for in the petition. Petition stands rejected. 4 In view of dismissal of petition, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/wp4279.09.odt