1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.751 OF 2007 IN CIVIL APPLICATION NO.1054 OF 2007 Damodar Mahamuni .. Appellant Versus Vishwambhar S. Mahamuni .. Respondent Mr.V.B.Rajure for appellant Mr.S.M.Oak for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd January 2008 P.C. . The Appeal from Order was directed to be heard along with the petition. The appeal from 2 order impugns an order passed by the trial court refusing to condone the delay and to set aside the abatement of the Suit being Suit No.127 of 1992. 2. There are two plaintiffs. The appellants are the heirs of the deceased plaintiff No.1 Damodar Mahamuni. Application made by them sets out that the suit is filed for partition and separate possession based upon shares of the parties. The said Damodar expired on 6th September 1996. The heirs are claiming their shares in the suit properties. They were unaware of filing of the suit and the impleadment of Damodar as plaintiff No.1 therein. They have specifically contended that they came to know of the filing of the said suit on 4th August 2004. It is in such circumstances that they applied on 4th August 2004 itself that the abatement be set aside and they be impleaded as plaintiff in place of deceased/original plaintiff No.1, Damodar. 3 3. That application was opposed by the defendant who is respondent No.1 before me. It was pointed out that during the course of the proceedings, an application was made for reliefs invoking Order 1 Rule 10 of C.P.C. That application having been rejected the second application would not lie. 4. Accepting this objection of the first respondent, the Trial Judge has rejected the subject application. I have perused the appeal memo and the annexures thereto, including the impugned order and the application for impleadment of heirs and setting aside the abatement so also a copy of the reply thereto. 5. In my view, the rejection on the ground that the earlier application was rejected, cannot be justified at all. Time and again the Supreme Court and this Court have taken a view that 4 liberal principles be applied while considering all such applications. Unless parties are guilty of utter negligence, deliberate delay and latches or malafides, the said application deserves to be granted. The Supreme Court has emphasised the fact that none dispute the principle that an opportunity to prove the case on merits must be granted. Grant should be the rule and denial exception. In such circumstances, merely because earlier application was not decided favourably and rejected is no ground. 6. Accordingly, the order under challenge is set aside. The heirs and legal representatives of the deceased Damodar are allowed to be impleaded as party plaintiffs. Abatement stands set aside. Amendments to be carried out within two weeks from the date of receipt of copy of this order. Copy of the amended plaint be served on the defendants. Additional Written statement, if any, to be filed within four weeks from the 5 date of receipt of amended copy of plaint. Trial court to endeavour and dispose of the suit as expeditiously as possible and within three months from the date the pleadings are complete. A.O. disposed of with no costs. 7. In the light of the order passed in A.O. Writ Petition Nos.1294 and 1298 of 2007 are allowed to be withdrawn and dismissed as such. 8. In the light of disposal of the A.O. civil application, if any, does not survive and stands disposed of. (S.C.Dharmadhikari, J)