1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL APPLICATION NO. 3839 OF 2009 IN WRIT PETITION NO. 5082 OF 1998 Vijaykumar Rambhau Chilwant ...Applicant VERSUS Sakha s/o Bapu died per heirs and L.Rs. And others ...Respondents ..... Shri A.H.Vaishnav, advocate for the applicant Shri R.P.Dhase, advocate for respondent nos. 2(i) to 2(iii) ..... CORAM : S.P. DAVARE, J. DATED : 9th June, 2009. ORAL ORDER : 1. Perused. 2. The applicant (original applicant no.1) has preferred the present application requesting to bring the heirs and L.Rs. of 2 deceased respondent no.2 on record in Writ Petition No. 5082 of 1998 by condoning delay caused in preferring the present Civil Application and also by setting aside the abatement order in respect of respondent no.2, if any, in Writ Petition No. 5082 of 1998. 3. It is the contention of the applicant herein that the applicant herein had filed Writ Petition on 13.7.1993 which was subsequently numbered as Writ Petition No. 5082 of 1998 and was admitted on 15.10.1999 and is pending for final hearing before this Court. During the pendency of the said Writ Petition, respondent no.2 expired on 13.9.1997. Hence the applicant submits that heirs and L.Rs. of deceased respondent no.2 are required to be brought on record in the said Writ Petition and the applicant is one of the heirs of deceased respondent no.2. The applicant also states that he was under bona fide impression that since he was one of the heirs of respondent no.2 and was conducting Writ Petition in the capacity of the petitioner, there was no necessity to bring other heirs on record. However, subsequently on 20.11.2008 the petitioner revealed that the other heirs are required to be brought on record and hence the applicant filed the present Civil Application on 20.11.2008. The applicant submits that in view of the aforesaid position delay of 10 years and 344 days has been caused in filing the present Civil 3 Application and the same be condoned in the interest of justice since it is not intentional and deliberate. 4. Heard both the learned counsel for the parties. 5. Considering the rival submissions, at the out set the petitioner has produced the death certificate of deceased respondent no.2 which discloses and confirms that respondent no. 2 expired on 13.9.1997. Hence right to sue survives and continuous in the heirs and L.Rs. of deceased respondent no.2 and, therefore, they are required to be brought on record in Writ Petition No. 5082 of 1998. However as stated by the applicant he was under bona fide impression that since he was one of the heirs and L.Rs. of respondent no.2, other heirs need not be brought on record, but it was revealed to him on 20.11.2008 that other heirs and L.Rs. of respondent no.2 also would be required to be brought on record in Writ Petition, he preferred the present application, but resultantly after delay of 10 years and 344 days. There is nothing to disbelieve the said contention and bona fide impression of the applicant/petitioner and, therefore, there is no impediment in accepting the same. Therefore, the delay occurred in filing present Civil Application is required to be condoned in the interest of justice. 4 6. Admittedly no order of abatement has been passed after the death of respondent no.2 in Writ Petition No. 5082 of 1998 and, therefore, nothing survives in the prayer in that respect. 7. In the circumstances, present Civil Application is allowed and delay of 10 years and 344 days causing in filing the present application stands condoned. The petitioner/applicant is directed to bring the L.Rs. And heirs of respondent no.2 i.e. Respondent nos. 2(i) to 2(iii) by substituting the name of deceased respondent no.2 therein. The present Civil Application is disposed of accordingly. Shri R.P.Dhase, learned counsel waives service of notice for respondent nos. 2 (i) and 2(iii) in Writ Petition No. 5082 of 1998. (S.P. DAVARE, J.) dbm/ca3839.09