{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4135 OF 2011 Sayad Sattar s/o Sayad Gulamoddin Petitioner Versus Sayed Latif s/o Sahed Mahboob (deceased) through L.Rs. & others Respondents Mr.K.J.Suryawanshi, advocate for the petitioner. Mr.S.D.Hiwarekar, advocate for respondents no.2 & 3. CORAM : S.S.SHINDE, J. DATE : 30 th November, 2011 PER COURT: 1 Heard learned Counsel for respective parties. 2 This writ petition takes exception to the order dated 22.03.2011, passed by 4th Joint Civil Judge, Junior Division, Jalna, below Exhibit-54 in R.C.S. No.322/2006. By the impugned order, prayer for condonation of delay occurred in filing the application for bringing on record legal representatives of deceased defendant no.1 has been rejected by the trial Court. It was also prayed in the said application that by condoning the delay occurred in bringing legal representatives of deceased defendant no.1 on record, the Court may set aside the order of abatement. {2} 3 Learned Counsel for the petitioner submits that the application for bringing on record legal representatives of deceased defendant no.1 was filed on 30th October, 2007. The advocate appearing for deceased defendant no.1 informed the Court about the death of defendant no.1 on 19.06.2007. Defendant No.1 died on 10.05.2007. According to the learned Counsel for the petitioner, first time, the petitioner – plaintiff came to know about the death of defendant no.1 when said fact was informed by the advocate for defendant no.1 to the trial Court. Therefore, an application was filed on 30.10.2007 for bringing legal representatives of deceased defendant no.1 on record. He further submits that though application for condonation of delay was filed before the trial Court, on the said application at Exhibit-29, the trial Court was pleased to issue notices to the proposed legal representatives of deceased defendant no.1 on 30.07.2007. He further submits that another application at Exhibit-45 for condonation of delay was filed. However, though said application was on record, it was not pressed since there was no prayer for setting aside abatement. Therefore, according to the learned Counsel for the petitioner, the view taken by the trial Court is too technical and the observation of the trial Court that there is delay of more than 770 days cannot be countenanced in the light of Exhibits-29 and 45 placed on record. Therefore, according to the learned Counsel for the petitioner, petition deserves to be allowed. {3} 4 On the other hand, learned Counsel appearing for Respondents No.2 & 3 submits that since the application for condonation of delay was not pressed by the Counsel appearing for the petitioner-plaintiff, there was further delay, as fresh application at Exhibit-54 was filed on 09.09.2009. Therefore, the trial Court has rightly held that there is delay of more than 770 days in filing the application at Exhibit-54 for bringing on record legal representatives of deceased defendant no.1. Therefore, according to the learned Counsel for Respondents No.2 and 3, this Court may not interfere in the impugned order. 5 I have given due consideration to the rival submissions. Upon perusal of the observations of the trial Court in the opening paragraph, it appears that the trial Court was of the view that there is delay of more than 770 days occurred in filing the application for bringing legal representatives of deceased defendant no.1 on record and for setting aside abatement. However, while making such observation, the trial Court lost sight of the fact that the application at Exhibit-29 was filed by the plaintiff-petitioner herein on 30.10.2007 and on the said application, already notices were issued to the legal representatives of deceased defendant no.1. From perusal of the impugned order, it appears that there is no discussion about application at Exhibit-29. Therefore, if the application for bringing legal representatives of deceased defendant no.1 was filed on {4} 30.10.2007, the trial Court should have taken a liberal approach in the matter and should have considered prayer of the plaintiff- petitioner made in the application at Exhibit-54. The observation of the trial Court that there is delay of more than 770 days appears to be without considering the application at Exhibit-29 and notices issued by the concerned Court on the said application. Therefore, in my considered view, so far as delay occurred in filing the application for bringing legal representatives of deceased defendant no.1 on record is concerned, same deserves to be condoned. Though advocate for the original plaintiff has put an endorsement “not pressed” on the application at Exhibit-29, however, for his mistake, the litigant should not suffer. 6 Therefore, taking overall view of the matter, delay occurred in filing the application for bringing on record legal representatives of deceased defendant no.1 stands condoned. However, so far as prayer for setting aside abatement is concerned, Exhibit-54 is restored to its original file so that respondents – defendants will get an opportunity to contest the issue of abatement. 7 Writ Petition is partly allowed. The order dated 22.03.2011, passed by the 4th Joint Civil Judge, Junior Division, Jalna, below Exhibit-54 in R.C.S. No.322/2006, is set aside to the extent of observation of the trial Court that there is delay of more {5} than 770 days and rejecting the prayer for condoning the delay. Application at Exhibit-54 is restored to its original file and the concerned Court to consider the prayer for setting aside abatement afresh by giving an opportunity to all the parties and then pass appropriate order in accordance with law. However, the petitioner shall pay costs of Rs.3000/- (Rs. Three thousand) to the defendants. Such cost amount to be deposited by the plaintiff – petitioner before the trial Court within three weeks from today. It is made clear that unless such cost amount is deposited, order passed by this Court will not take effect. Upon deposit of cost amount, the defendants will be entitled to withdraw the same. 8 Writ Petition is allowed to above extent and same stands disposed of accordingly. S.S.SHINDE JUDGE adb/wp413511