1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5548 OF 2008 Sidramayya s/o Mahadayya Swami, age: 44 years, Occ: Agri., R/o Dalimb, Tq. Omerga, Dist.Osmanabad. Petitioner Versus 1 Parubai w/o Panda Gaikwad, (deceased) 2 Barkabai d/o Panda Gaikwad, age: 42 years, Occ: and R/o as above. 3 Gorakh s/o Panda Gaikwad, age: 42 years, Occ: Labour, R/o as above. 4 Narayan s/o Narsu Igwe (deceased), through its L.Rs: 4a Smt.Subabai w/o Narayan Igwe, age: 79 years, Occ: Household, R/o as above. 4b Anand s/o Narayan Igwe, age: 57 years, Occ: Agri., R/o as above. 4c Narhari s/o Narayan Igwe, age: 54 years, Occ: & R/o as above. 4d Sou Kaveribai w/o Kashiram Ubale, age: 51 years, Occ: Household, R/o as above. 4e Sou.Ratnabai w/o Balbhim Pachange, age: 48 years, Occ: & R/o as above. 2 4f Sou.Lalita w/o Baburao Salunke, age: 45 years, Occ: and R/o as above. Respondents Mr.B.R.Sontakke Patil, advocate for petitioner. Mr.P.B.Gapat, advocate for Respondents No.4(a) to 4(f). CORAM: R.M.BORDE, J. DATE : 30th April, 2010. ORAL JUDGMENT: 1 Heard Shri B.R.Sontakke Patil, learned Counsel for petitioner and Shri P.B.Gapat, learned Counsel for contesting Respondents No.4(a) to 4(f). Rule, made returnable forthwith and heard finally by consent of learned Counsel for contesting parties. 2 The application tendered by Respondents No.4a to 4f for their impleadment in the suit has been allowed by the trial Court in view of order passed on 11.07.2007 and said order passed during continuance of suit is subjected to challenge in this petition. 3 Petitioner is original plaintiff, who has instituted Regular Civil Suit No.328/1995 initially against Respondents No.1 to 3 claiming declaration that decree passed in Regular Civil Suit No.49/1983 on 16.04.1983 is not binding upon him. 4 It is not necessary to note factual details of the matter for the purposes of determination of controversy involved in the matter. During 3 pendency of suit, original defendant no.4 Narayan Narsu Igwe presented an application for his impleadment in the suit, which came to be allowed. Defendant No.4 died during continuance of suit. His two sons – present Respondents No.4b and 4c initially tendered an application for their impleadment in the suit as legal heirs of deceased Respondent No.4. The application was opposed by plaintiff as well as other defendants. After considering rival contentions, application came to be rejected in view of the order passed by trial Court on 26.10.2004. The trial Court, while rejecting the application, noted that death certificate of defendant no.4 is not placed on record and in the absence of disclosure as regards date of death of defendant no.4, it would be difficult to ascertain as to whether application for impleadment of Respondents No.4b and 4c is within limitation or not. 5 Legal heirs of original defendant no.4 – Respondents No.4a to 4f presented an application at Exhibit-69 for impleading them as legal heirs of defendant no.4 on record. It is specifically noted in the application that no application seeking impleadment of legal heirs of deceased Respondent No. 4 was earlier presented by them. They came to know about institution of suit on 20.09.2004 and as such, application being presented, is within limitation from the date of gaining knowledge. The application was opposed by original plaintiff contending that death certificate of defendant no.4 is not placed on record. It was also pointed out that earlier there was an application presented by Respondents No.4b and 4c for their impleadment as legal heirs of deceased Respondent No.4 and same was rejected on 26.10.2004. It was, therefore, contended that instant application is not entertainable and same needs to be rejected. Another contention raised by plaintiff is that there is no application tendered seeking condonation of delay occurred in presenting application for impleadment of Respondents No.4a to 4 4f. It is also contended that legal heirs of deceased defendant no.4 are not necessary party for adjudicating controversy involved in the suit. The application was, however, allowed by the trial Court, in view of the order passed on 11.07.2007. The order passed by trial Court allowing application Exhibit-69 is subjected to challenge in this petition. 7 The trial Court, while considering the application, has observed that earlier application at Exhibit-63 was filed by two legal heirs of deceased defendant no.4 for their impleadment as defendants no.4 and 5 respectively. It is noted that said application was rejected because of technical deficiencies. So far as aspect of delay is concerned, there is delay of three years and 7 months and in view of the reasons stated in the application, trial Court found it appropriate to condone delay as there is sufficient cause shown for approaching the Court late. 8 I have perused the application as well as impugned order passed by trial Court. Learned Counsel appearing for petitioner has vehemently contended that in the absence of any specific reason for condonation of delay, trial Court ought not to have considered the application. Learned Counsel for the petitioner places reliance on the judgment in the case of Union of India Vs. Ram Kishan, reported in 2001 AIR SCW 2352 and contends that in the absence of there being any application seeking condonation of delay, trial Court ought not to have entertained the application and same was liable to be rejected. 9 Learned Counsel appearing for contesting respondents has contended that although there is no specific prayer in the application, there is sufficient explanation given for approaching the Court late. It is also 5 contended that aspect of approaching the Court late is considered by the trial Court and as such no interference is called for. 10 On perusal of the impugned order, it transpires that there is no application tendered by the applicants/Respondents No.4a to 4f. The fact in respect of dismissal of earlier application Exhibit-63 does not appear to have been disclosed by applicants in the subsequent application. Although earlier application was presented only by two legal heirs, however, other legal heirs of deceased defendant no.4, including Respondents No.4b and 4c, who were applicants before the Court, are expected to disclose all the details in the application. 11 Considering fact situation of the case, I am of the opinion that for proper adjudication of the dispute, it would be appropriate for the Respondents to place their contentions before the trial Court. The Respondents can be granted liberty to present appropriate application explaining delay in approaching the Court. The trial Court, after considering objections, if any, raised by parties to the litigation, may proceed to consider such application. The impugned order, however, in the absence of any prayer by respondents i.e. Respondents No.4a to 4f seeking condonation of delay in approaching the Court, will not be sustainable. While quashing the impugned order, I deem it appropriate to remit the matter back to the trial Court for reconsideration. 12 In this view of the matter, order passed by trial Court on 11.07.2007 below Exhibit-69 in Regular Civil Suit No.328/1995 is quashed and set aside and matter is remitted back to the trial Court for reconsideration of the issue afresh. Respondents No.4a to 4f shall have liberty to present separate 6 application for condonation of delay occurred in approaching the Court for presenting application at Exhibit-69. The trial Court, after considering contentions, those may be raised by the parties, proceed to decide such application. All the contentions raised in instant writ petition shall be open for consideration by the trial Court. The parties shall have liberty to agitate all the grounds before the trial Court. 13 Rule is accordingly made absolute in above terms. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp554808