1 caw2709-2710.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.2709 OF 2010 CIVIL APPLICATION NO.2710 OF 2010 IN WRIT PETITION NO.1716 OF 1993 Wali Mohammad Haji Usman Kaladia (since deceased through L.Rs.) ...Applicants vs. Mr.Anif Siddique Shaikh (since deceased through L.Rs.) ...Respondents Mr.Deepak Lulia for the applicants Mr.A.N.Mulla for the respondents CORAM :A.S.OKA,J. DATE : NOVEMBER 24,2010 P.C.: 1 Heard the learned counsel for the applicants and the learned counsel for the respondents. The applicants are the petitioners in the writ petition. On 29th August 2008, writ petition was dismissed as none appeared for the petitioners. Original respondent in the writ petition was present when the petition was dismissed. 2 The present respondents are the legal representatives of the original respondent. Civil application no.2710 of 2010 is filed for bringing the legal representatives of the deceased respondent on record. Civil application no.2709 of 2010 is filed by the petitioners in writ petition for restoration of the petition. 3 The applications are opposed by the learned counsel for the legal representatives of the respondent by 2 caw2709-2710.sxw pointing out that the petitioners have repeatedly remained absent when the writ petition was called out for hearing. He submitted that the application for restoration has been taken out nearly two years after the dismissal. He submitted that original respondent in the writ petition expired on 3rd March 2002 and there is a gross delay in bringing his legal representatives on record. He, therefore, submitted that no case is made out for restoration. 4 I have considered the submissions. It is true that the original respondent died on 3 rd March 2002. However, there is nothing on record to show that compliance has been made with Rule 10-A of Order XXII of the Code of Civil Procedure,1908. The date of death of the sole respondent was not brought to the notice of the petitioners in the writ petition. In any event, there is an explanation in civil application no. 2710 of 2010 for not filing the application for bringing on record the legal representatives within limitation. 5 Perusal of the Farad Sheet of the writ petition shows that after rule was issued on 28 th October 1993, petition was placed for final hearing on 30th November 2007 when none appeared for the petitioners. Thereafter, petition was placed on board on 29th August 2008 when none appeared for the petitioner. This is not a case where the petitioners repeatedly remained absent. An application for restoration has been filed on 3rd May 2010. In the application for restoration it is stated that the petitioners were not informed about the dismissal. Therefore, a case for restoration of the writ petition was made out. As there is gross delay, the respondents will have to be compensated by ordering payment of costs. Amount of costs is quantified at Rs. 3 caw2709-2710.sxw 10,000/-. 6 Hence, I pass the following order : i) Civil application no.2709 of 2010 is allowed in terms of prayer clauses (a) and (b). ii)Civil application no.2710 of 2010 is allowed in terms of prayer clauses (a) and (b). Amendment to be carried out within a period of three weeks from today. iii)The applicants shall pay costs of Rs.10,000/- to the respondents within a period of six weeks from today as a condition precedent. iv)It is clarified that on the basis of the order passed in Civil application no.2710 of 2010, permission is granted to bring legal representatives of the deceased respondent on record of the writ petition. JUDGE