1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1249 OF 2010. (Smt. Susheelabai Wasudeo Tathe and others. -versus- Ramdas Gopichand Dhumal ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 02, 2010. Heard finally by consent of Shri R.J. Kankale, learned counsel for petitioners and Shri N.R.Saboo, learned counsel for respondent. Application filed by the petitioners to come on record as legal heirs of deceased plaintiff in Regular Civil Suit No. 161/2001 has been rejected by the trial Court and also by the Appellate Court, after holding that there is no prayer for setting aside abatement. It is an admitted position that the deceased plaintiff expired on 29.07.2002, and the application to bring legal heirs on record has been filed on 02.02.2005. The Appellate Court has also found that the learned counsel then representing the deceased plaintiff was 2 aware of plaintiff's death, but did not discharge his obligation cast by Order 22 Rule 10 A of Civil Procedur Code. By placing reliance upon the judgments of Hon'ble Apex Court reported at JT 2004 (9) SC 327 (K.Rudrappa .vrs. Shivappa) and AIR 2004 SC 4158 (Ganeshprasad Badriyanarayn Lahoti .vrs. Sanjeevprasad Jamnaprasad Chourasiya), learned counsel states that the application filed by the legal heirs itself could have been treated as an application for setting aside abatement and technical approach in the matter was not necessary or unwarranted. The learned counsel further states that the suit pertains to protection of possession on the basis of the sale deed and present respondent is trying to disturb it. Shri Saboo, learned counsel on the other hand relies on the observations made by the appellate Court to show that the Appellate Court has found the story of absence of knowledge as pleaded by the legal heirs to be incorrect. With the assistance of both the learned counsel, I, have perused the application as also the impugned orders. The material no where demonstrate that the legal heirs were aware of the pendency of the suit. They have only mentioned that Advocate Shri Patil, informed them stage of the suit when it was fixed for evidence, and that they got 3 knowledge of it. This contention is disbelieved only because of the inference drawn by the appellate Court that as Advocate Shri Patil has informed one of the legal heirs it assumed knowledge of Advocate Patil that plaintiff has expired and has taken recourse to provisions of Order 22 Rule 10-A of C.P.C., to further find that Advocate Shri Patil, did not discharge his obligation by filing Pursis and informing that death to the trial Court. It is apparent that the inference as drawn is unsustainable. Advocate Shri Patil, could have informed the stage of suit to any relative of plaintiff and that does not mean that he was aware that the plaintiff had expired. In any case, the knowledge of death of plaintiff to Advocate Shri Patil is not very relevant. I, therefore, find that the application of mind by the Trial Court as also by the Appellate Court is unsustainable. In the light of the first judgment cited before this Court, it is also clear that the Courts have taken too technical view of the matter. In this situation, the impugned orders are quashed and set aside. The petitioners are permitted to come on record as legal heirs, by setting aside abatement and by condoning the delay. But the same shall be subject to payment of cost of Rs. 5000/- to the present respondent 4 before the trial Court by 30.07.2010. If the costs are so paid, the trial Court shall permit the petitioners to substitute themselves as plaintiffs and proceed further with trial of the suit on merits. Writ Petition is allowed in aforesaid terms. Rule accordingly. JUDGE Rgd.