1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5138 OF 2003 Kumar Saleem Abdul maneer & Ors. .. Petitioners Vs Panda Tatya Jadhav & Ors. .. Respondents -- Shri Umesh Mankapure for the Petitioners. Shri Pradip R. Kadam for Respondent Nos.1A to 1H. -- CORAM : A.S.OKA, J. DATE : 11TH FEBRUARY, 2010 P.C: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. By this Writ Petition under Article 227 of the Constitution of India, the Petitioners have challenged the order dated 15th July, 2000 passed by the learned Additional District Judge, Sangli, below Applications at Exhibits 27 and 32 in the pending appeal. 2. The present Petitioners are the original 1st to 5th Defendants. The Respondent Nos.1(a) to 1(i) are the legal representatives of the original Plaintiffs. An Appeal was preferred by the Petitioners before the District Court challenging a decree for redemption of mortgage passed in favour of the 1st Respondent. During the pendency of the Appeal, the 1st Respondent in the Appeal ( Original Plaintiff ) expired. The application was made by the Petitioners at Exhibit – 27 on 29th October, 1999 for setting aside the 2 abatement and condonation of delay. The Application at Exhibit -32 was filed for bringing the legal representatives of the deceased 1st Respondent on record. 3. The 1st Respondent died on 21st October, 1992. In the application filed by the Petitioners, it was contended that the Petitioner became aware about the death of the deceased Respondent No.1 when the appeal appeared on board on 15th December, 1998. The case of the Petitioners is that they had informed their lawyer that there were chances of settlement. Therefore, the Advocate advised them not to take any steps. It is alleged that one of the heirs of the deceased Respondent No.1 adopted hostile attitude and as a result there was no chance of settlement and, therefore, the applications were filed. By the impugned order, both the applications have been rejected and the appeal is held to be abated as against the 1st Respondent thereto. 4. The learned counsel appearing for the Petitioners submitted that there was sufficient explanation for delay set out in the applications and the Court ought to have adopted liberal approach. The learned counsel appearing for the legal representatives of the 1st Respondent submitted that a purshis was filed on record at Exhibit-19 on 22nd January, 1993 by the Advocate for the Petitioners setting out the fact that the 1st Respondent had died. He submitted that there is gross unexplained delay. He submitted that the petitioners have been benefited by the delay as even this Petition 3 has been pending in this Court since 2003. He submitted that the Petitioners are liable to pay mesne profit. 5. I have considered the submissions. In the impugned order, the learned District Judge has observed thus:- “.....The appeal of respondent No.1 had filed an application at Exh.23 stating that L.Rs. of the respondent No.1, who died on 21.10.1992 were not brought on record by the appellants and hence, the appeal was abated. Not only this, the appellants advocate Shri Khadilkar had filed pursis at Exh.19 on 22.1.1993 informing the death of respondent. The pursis does not itself show the name of the respondent or deceased respondent No.1. But, it was apparent that this information was proved death of respondent No.1 only, as Mr. Khadilkar, Advocate was signed this pursis were presenting respondent No.1 only. In this circumstances, it must be held that the appellants must have knowledge of the death of the respondent No.1 on 22.1.1993 itself. There is no reason on the part of the appellants as to why they were waited for a considerable period about six years and nine months without bringing the L.Rs. on record.” 6. Perusal of the first part of the order shows that Advocate Khadilkar who filed a pursis was representing the Petitioners. The later part of the order indicates that the said Advocate was appearing for the 1st Respondent. The purshis does not show the name of the deceased Respondent No.1. There is no finding recorded that a copy of the pursis was served to the Advocate for the Petitioners. In the application for setting aside abatement, it was stated that there was a possibility of 4 settlement and, therefore, the Advocate concerned advised the Petitioners not to take any further steps. Only after the Petitioners realised that the settlement was not possible, the present applications were filed. 7. In a matter like this, a liberal and justice oriented approach is contemplated. The occasion for condonation of delay arises only when there is some default on the part of the litigants. In a case like this, the delay ought to have condoned and the abatement ought to have set aside by directing the Petitioners to pay costs. 8. The impugned order is passed in July, 2000. The Appeal is of the year 1991. The Writ Petition has remained pending in this Court from the year 2003 for one reason or the other. The Petition was dismissed earlier and was restored. Because of this delay, the Appeal of the year 1991 has remained pending. Therefore, this is a case where exemplary costs will have to be paid by the Petitioners to the legal representatives of the 1st Respondent. Considering the delay involved, the amount of costs is quantified at Rs.10,000/-. 9. Hence, I pass following order. (a) The impugned order is quashed and set aside and the applications at Exhibits 27 and 32 in Civil Appeal No. 500 of 1991 are allowed. 5 (b) The Petitioners are directed to pay costs of Rs.10,000/- to the legal representatives of the 1st Respondent within a period of six weeks from today. (c) The deposit of the amount of costs in the Appellate Court will be treated as a sufficient compliance. If the amount is not paid or deposited within the stipulated time, the Appeal shall be dismissed for non-prosecution. (d) Hearing of the Appeal is expedited and the Appellate Court is directed to decide the Appeal finally and as expeditiously as possible and in any event on or before 15th July, 2010. (A.S.OKA, J)