1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8164 OF 2009 1 Nivaruti Maruti Satpute(deceased) 2 Housabai Maruti Satpute (since deceased through L.Rs.) 2a Nivaruti Maruti Satpute (deceased) 2b Sou Vithabai Baburao Khade 2c Sou Shalabai Krishna Lokhande 3 Sou Vithabai Baburao Khade 4 Sou Shalabai Krishna Lokhande 5 Bhupal Mahipati Shete ...Petitioners vs 1 Smt.Amabubai Janardan Satpute 2 Prakash Janardan Satpute 3 Narayan Janardan Satpute 4 Gorakh Janardan Satpute 5 Sou Suman @ Sunanda Narayan Satpute 6 Jaysing Sambhaji More ...Respondents AND WRIT PETITION NO.8165 OF 2009 1 Nivaruti Maruti Khade (deceased) 2 Sou Vithabai Baburao Khade 3 Sou Shalabai Krishna Lokhande ...Petitioners vs Janardan Maruti Chambhar Satpute (since deceased through L.Rs.) 1 Smt.Amabubai Janardan Satpute 2 Prakash Janardan Satpute 3 Gorakh Janardan Satpute ...Respondents. Mr.Rahul P.Walvekar for the petitioners in both the petitions. Mr.A.M.Adagule for respondent nos.1,2 and 4. 2 CORAM: A.S.OKA,J. DATE : FEBRUARY 2,2010 JUDGMENT : 1 On 25th September 2009, notice for final disposal at admission stage was issued by this Court. 2 These petitions can be conveniently disposed of by a common Judgment and Order. The petitioners instituted Regular Civil Suit No.44 of 1989 against the respondents. The suit was for permanent injunction. The respondents filed a Regular Civil Suit no.722 of 1991 against the petitioners. The said suit was for declaration, possession and permanent injunction. The suits were heard together. By Judgment and Order dated 4th May 2007 the suit filed by the petitioners was dismissed and the suit filed by the respondents was decreed. Two separate Appeals were preferred by the petitioners for challenging the said decrees. 3 It appears that during the pendency of the said Appeals, the 1st appellant therein one Nivrutti Maruti Satpute (the 1st plaintiff in the suit filed by the petitioners and the 1st defendant in the suit filed by the respondents) died on 23rd December 2007. Initially, the applications were made by the petitioners in the pending appeals on 4th April 2008 for bringing heirs of the said Nivrutti on record. The said applications were opposed by the respondents. By order dated 25th November 2008, the said applications were rejected by the 3 learned District Judge on the ground that there was no separate application moved for setting aside abatement of the Appeals. Therefore, it appears that separate applications for abatement of the Appeals were filed by the petitioners on 19th April 2009. Along with the said applications, separate applications for condonation of delay were filed on the same date. By the impugned Judgments and Order the said applications have been rejected. 4 The learned counsel for the petitioners submitted that the said Nivrutti died on 23rd December 2007 and the first applications were made by the petitioners on 4th April 2008. He submitted that the period for filing limitation expired on 22nd March 2008 and there was only few days of delay. He submitted that though there were prayers made for condonation of delay in the said applications, same were rejected by order dated 25th November 2008 on hyper-technical ground of not filing a separate application for abatement. He submitted that earlier applications were not decided on merits and therefore, the Appellate Court committed an error by applying principles of res judicata while deciding the subsequent applications. The learned counsel for the respondents supported the impugned Judgment and Order by contending that earlier applications were rejected on 25th November 2008 and the petitioners took more than 3 months to file fresh applications which were not maintainable as earlier applications were rejected. He submitted that no interference was called for. 5 I have carefully considered the submissions. In the 4 applications made by the petitioners on 4th April 2008, there was a prayer for condonation of delay. If at all there was an abatement of the Appeals, the prayer for setting aside the abatement was implicit in the said applications. Perusal of the orders dated 25th November 2008 passed by the Appellate Court shows that the applications were rejected only on the ground that the applications for setting aside the abatement were not made and the applications were moved for condonation of delay without specifying the number of days of delay. These applications made by the petitioners were not rejected on merits but on the hyper technical ground that there were no separate applications made for setting aside the abatement. It is true that the petitioners could have challenged the said order but in view of the to legal advice, instead of challenging the said orders, they again applied in April 2009 praying for setting aside the abatement and for condonation of delay. The fresh applications were rejected on the ground that in view of rejection of earlier applications, the principles of res-judicata were applicable. 6 The earlier applications were not rejected on merits and the same were rejected on the ground that the applications for setting aside abatement were not made. There is no adjudication on merits. It is true that there is delay of about 4 months in making the present applications from the date of rejection of the earlier applications. But the fact remains that earlier applications were filed by the petitioners on 4th April 2008 and the delay in filing earlier application was only of 12 days This aspect ought to have been considered by the 5 Appellate Court. The delay could have been condoned subject to payment of costs. This was a case where the Appellate Court ought to have adopted a justice oriented and liberal approach. The Appellate Court ought to have condoned the delay and set aside the abatement. The petitioners will have to pay costs of Rs.5000/- in each petition. 7 Hence, I pass the following order : i) Writ Petition no.8164 of 2009 is allowed in terms of prayer clause (B) subject to the petitioners paying costs of Rs.5000/- to the respondents within a period of six weeks from today. ii) Writ Petition No.8165 of 2009 is allowed in terms of prayer clause (B) subject to the petitioners paying costs of Rs.5000/- to the respondents within a period of six weeks from today. . The deposit of amount of costs with the Appellate Court within stipulated time shall be treated as sufficient compliance with this order. JUDGE