1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5456 OF 2007 1. Narsingdasji s/o Bansilalji Ladda Deceased through L’Rs. 1/1. Indubai w/o Narsingdasji Ladda age about 66 years, Occ. Business, and Household, R/o Amrawati, Tq. & Dist. Amrawati. 1/2 Pushpa w/o Omprakash Laddha age 42 yrs, Occ. as above. r/o as above. 1/3. Aditya s/o Omprakash Laddha, age about 17 years, Occ. Student, minor u/g of his mother, Pushpa w/o Omprakash Laddha petitioner No.1/2. 1/4. Ku. Sneha s/o Omprakash Laddha age 14 years, Occ. Student, minor u/g of her mother, Pushpa Omprakash Laddha petitioner No.1/2. 2. Rameshwar s/o Dashrathlal Agrawal, age 62 years, Occ. Business, r/o New Mondha, Parbhani. 3. Bankatlal s/o Sitaram Mundada age 70 years, Occ. Advocate, r/o Nanal Peth, Parbhani. 4. Dattappa s/o Rawappa Basmathkar, deceased through L’Rs. 2 4/1. Janabai w/o Dattappa Basmathkar, age 66 years, Occ. Household, r/o Station Road, Parbhani. 4/2. Rekha w/o Sudhakar Basmathkar, age 45 years, Occ. Household, r/o as above. 4/3. Deelip s/o Dattappa Basmathkar, age 43 yrs, Occ. Business, r/o as above. 4/4 Arjun s/o Dattappa Basmathkar, age 38 yrs, Occ. Business, r/o as above. Petitioners orig. plaintiffs. V E R S U S 1. Dnyanopasak Shikshan Mandal Rawa, Taluka Jintur Dist Parbhani, Having its head office at Dnyanopasak Shikshan Mandal’s Arts, Commerce and Science College, Jintur Road, Parbhani. Through its Chairman, Ganeshrao s/o Nagorao Dudhgaonkar, age 59 yrs, Occ. Agril, R/o Jintur Road, Parbhani. 2. Dnyanopasak Shikshan Mandal Rawa, Taluka Jintur Dist. Parbhani. Having its head office at Dnyanopasak Shikshan Mandal’s Arts, Commerce and Science College, Jintur Road, Parbhani. Through its Chairman, Shankarrao s/o Bapurao Nikan, Deleted as per order dt. age 59 years, Occ. Business, 14.10.2009 on CA 9168/2009. R/o Parbhani. 3 3. Dnyanopasak Shikshan Mandal Rawa, Taluka jintur Dist Parbhani, having its head office at Dnyanopasak Shikshan Mandal’s Arts, Commerce and Science, College, Jintur Road, Parbhani, Through its Principal. 4. Dnyanopasak Shikshan Mandal Rawa, Taluka jintur Dist Parbhani, having its head office at Dnyanopasak Shikshan Mandal’s Arts, Commerce and Science, College, Jintur Road, Parbhani, Through its Principal of B.P.Ed. College, 5- Parbhani Zilha Krishi Audyogic Sarva Seva Sahakari Society Ltd., Parbhani Through its liquidator, Asst. Registrar Co-operative Societies, New Mondha, Parbhani. 6- Zilha Parishad, Parbhani, Through its Chief Executive Officer, Zilha Parishad, Parbhani. 7- Suresh s/o Sambhaji Jadhav, Died. Respondents Orig. Defendants. Shri S.S. Rathi, advocate for the petitioner. Shri R.N.Dhorde, advocate for the respondents 3 and 4. R-5 and 6 served. R-2 deleted. R No.7 Died. CORAM : R. M. BORDE, J. DATE : 18 TH DECEMBER, 2009. 4 ORAL JUDGMENT :- 1. Heard. Rule. With the consent of the parties matter is taken up for final disposal at admission stage. 2. An application tendered by the plaintiff/petitioner in pending Spl. C.S. No.81/2000 requesting the court to grant permission to bring on record legal heirs of deceased defendant No.7 came to be rejected by the trial court in view of order passed on 21.06.2007. Suit is presented by the plaintiff seeking decree of recovery of possession of the property. It transpired during continuance of the suit that defendant no.7 has died on 03.12.2005. The plaintiff came to know about the factum of death of defendant No.7 in the year 2007 and as such he tendered an application requesting the court to permit him to bring on record legal representatives of defendant No.7. However, application appears to have been rejected for the reason that no separate application seeking condonation of delay and for setting aside abatement was filed. It is contended by the counsel appearing for petitioner/ original plaintiff that in fact it was for the counsel representing to defendant to file a purshis in accordance with order 21 Rule 10-A and to inform the factum of death. However as there was failure on the part of concerned defendant to inform the court and comply with the provisions of law, delay that has occurred is liable to be condoned. The fact remains that there was no prayer made by the plaintiff requesting the court to condone delay or to set aside the order of abatement. In the facts and circumstances of the case, it 5 would be desirable to permit the plaintiff to tender an appropriate application seeking condonation of delay as well as praying for setting aside abatement and thereupon trial court may consider the application tendered by the plaintiff requesting the court to permit him to bring on record legal heirs of deceased defendant No.7. The petition, therefore, is required to be allowed and same is accordingly allowed. The order passed by the Civil Judge (S.D.), Parbhani on 21.06.2007 below Exh.110 in Spl.C.S.No.81/2000 is quashed and set aside. The plaintiff-petitioner shall have liberty to tender an application seeking condonation of delay as well as praying for setting aside abatement order and for requesting to permit him to bring on record legal heirs of deceased defendant No.7. The trial court shall consider such application, if tendered by petitioner along with the application represented on 07.03.2007 requesting the court to permit him bring on record legal heirs of deceased defendant No.7. The trial court may consider the application taking into consideration fact that suit involves question of entitlement to the immovable property. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE ) JUDGE aaa/5456.07 ***