:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 8081 OF 2007 PETITION NO. 8081 OF 2007 PETITION NO. 8081 OF 2007 Vasantlal Mohanlal Khinvasara since decesed his legal heirs Abhay Vasantlal Khinvasara & Anr. ..Petitioners V/s Mazhar Rasul Sheikh & Anr. ..Respondents. Ms Gauri Godse for the petitioners Mr.J.S.Kini h/f Suresh Dubay for the respondent No.1. CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 13TH JUNE, 2008 : 13TH JUNE, 2008 : 13TH JUNE, 2008 P.C. 1. The petitioners impugns the order dated 17-7-2007 passed by the IInd Jt.Civil Judge,S.D. Pune, whereby the application to bring on record the name of the wife of the original deceased defendant, who died on 25-08-2002 has been allowed. 2. It is not disputed that the Respondents herein who are defendant Nos. 1 and 2 in the suit and who are the sons of the orig. deceased defendant are already on record. The defendant No.3 is the widow of the deceased defendant and the mother of defendant Nos. 1 and 2. The learned Counsel for the :2: petitioners has submitted that the application to bring the defendant No. 3 on record, ought to have been made within 90 days and in any case within three years. It is submitted that the application to bring the Defendant No. 3 on record as heir of deceased defendant was filed after a period of 4 years and hence time barred. It is the case of the petitioners that they have filed a purshis on 22-01-2003 stating that the wife of the deceased defendant was also a legal heir and it was necessary to bring her on record. Moreover, it is their case that even in their written statement which was filed on 11-7-2003 they have stated that the pensioners were wrongly impleaded in the suit and that the respondent ought to have impleaded the wife of the deceased defendant. However, the respondents have failed to do so within the prescribed period and have now in the guise of carrying out amendment want to bring on record Defendant No.3, when the suit stood abated as against her. To fortify this contention the learned Counsel has relied upon following cases :- (1) Qazi Abdul Quddus Qazi Abdul Rahim V. Qazi Qazi Abdul Quddus Qazi Abdul Rahim V. Qazi Qazi Abdul Quddus Qazi Abdul Rahim V. Qazi Ghaziuddin Ghaziuddin Ghaziuddin s/o Qazi Aminuddin and others s/o Qazi Aminuddin and others s/o Qazi Aminuddin and others, reported in :3: 1979 Mh.L.J. 431 (2) Yadao Mahadeo Munne and others Yadao Mahadeo Munne and others Yadao Mahadeo Munne and others V. V. V. Zibal s/o Tukaramji Irkhade deceased by L.Rs. Zibal s/o Tukaramji Irkhade deceased by L.Rs. Zibal s/o Tukaramji Irkhade deceased by L.Rs., reported in 1993 Mh.L.J. 756 (3) State of Kerala V. State of Kerala V. State of Kerala V. Sridevi Sridevi Sridevi and others, and others, and others, reported in (2000) 9 S.C.C. 168 3. After going through the impugned order, I find that the learned Trial Court has considered the fact that the respondents came to know about defendant No.3 being the 3rd legal heir when the copy of the written statement was received by the respondents on 4-12-2006 and the application for bringing on record the wife of the deceased defendant as defendant No.3 was made on 22-1-2007 and the Court has allowed the application vide the impugned order. This finding of the fact, in my view is not required to gone into in exercise of writ jurisdiction of this Court under Article 227 of Constitution of India. 4. In so far as the judgments cited by the learned Counsel for the petitioner is concerned, the same would not be applicable in the facts of the present case in view of the finding of the Trial Court that the respondents came to know about the wife of the deceased defendant only after receipt of :4: the written statement on 4-12-2006 and therefore the application which was filed on 22-01-2007 was in time. In fact the decisions support the case of the respondent in so far as the issue of abatement is concerned, as the Courts therein have held that there cannot be any abatement when other L/Rs are already on record. 5. In the circumstances, the impugned order does not call for interference and writ petition is dismissed. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)