1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1979 OF 2009 IN CIVIL WRIT PETITION NO.87 OF 1994 Madhukar Narayn Kudalkar since deceased through his legal heirs & representatives Smt.Madhavi Madhukar Kudalkar & Ors. .. Applicants Versus Arvind Dattatray Waykul since deceased through his legal heirs Charulata Mohan Gandhi & Ors. .. Respondents Mr.N.D.Hombalkar for the applicants. Mr.Mandar Limaye for respondents. CORAM : A.S.OKA, J. DATE : 21 st August 2009. P.C.: . Shri Limaye states that he has instructions to appear for all respondents including the proposed legal representatives of respondent No.1a. He states that he has filed vakalatnama of respondent No.2 and he will file vakalatnama of all other respondents including the proposed legal representatives within a period of two weeks from today. 2. Civil Application is taken up for hearing. The prayer in this application made by the petitioners in the writ petition is for bringing on record the legal 2 representatives of deceased respondent No.1a. The said respondent No.1a expired on 14 th February 1996. The learned counsel appearing for the applicants have invited my attention to synopsis of dates and events annexed to the application. He pointed out that there is more than sufficient explanation for the delay. He has placed reliance on the decision of the Apex Court in the case of Puran Singh & Ors. Vs. State of Punjab & Ors (AIR 1996 Supreme Court 1092). 3. The learned counsel appearing for the respondents submitted that there is a gross unexplained delay on the part of the applicants. He stated that the applicants who are the petitioners were aware right from 1999 about death of the concerned respondent and the present application has been filed in July 2009. He pointed out that when the writ petition filed by the applicants was dismissed, the applicants had applied for restoration in the year 2006 and while applying for restoration the name of respondent No.1a was deleted though the applicants were fully aware of death of the said respondent. He relied upon a decision of the Apex Court in the case of Katari Suryanarayanan & Ors Vs. Koppisetti Subba Rao & Ors (Civil Appeal No.2240 of 2009 decided on 08 th April 2009). He submitted that in view of the 3 unexplained delay the application deserves to be dismissed. 4. I have considered the submissions. The petitioners are the original defendants and the respondents are the original plaintiffs. The challenge in the writ petition filed by the applicants is to a decree for possession under the provisions of the Rent Control Legislation. The respondent No.1a who had died is one of the legal representatives of deceased original plaintiff landlord. 5. It is pertinent to note that on 12 th May 1999 the learned counsel appearing for the deceased respondent filed a note in the office of this Court informing that the respondent No.1a had died on 14 th February 1996. Immediately, thereafter on 27 th July 1999 after obtaining name of one of the legal representatives [respondent No.1a(i) herein] a civil application for bringing on record the heirs of the deceased respondent No.1a was filed by the applicants. Thus, before expiry of period of 90 days from the day on which the death of the concerned respondent was brought to the notice of the applicants an application was made for bringing on record atleast one of the legal representatives. It is disclosed in 4 the said application that the respondent No.1a has daughters. However, it is stated that their names and addresses were not known to the applicants. It must be stated here that on 06 th August 1999 the said application was dismissed by this Court on the ground that it is not stated in the application that the son of the respondent No.1a whose name was incorporated as heir was not the only legal representative of the deceased. 6. Thereafter, there was a change of advocates as the learned advocate representing the applicants was elevated as a Judge of this Court. On 22 nd March 2006 when the writ petition came up on final hearing board, the same was dismissed for default as the advocate subsequently appointed by the applicants was absent. Thereafter on 27 th March 2006 the applicants engaged a new advocate and applied for restoration. On 20 th April 2006 the writ petition was restored. On 12 th September 2008 the writ petition was shown on final hearing board but the appearance of the advocate who had appeared for applicants was not shown and the appearance of the advocate earlier appearing for the applicants was shown. The earlier advocate informed the subsequently appointed advocate on 17 th September 2008 that the petition was on final 5 hearing board. Thereafter the file containing relevant papers was received by the present advocate for the applicants. On 08 th October 2008 an application was filed by the applicants for bringing on record the legal representatives of the respondent No.1a. The said application was permitted to be withdrawn by this Court on 19 th June 2009 with liberty to file a fresh application. Accordingly, this fresh application has been filed by the applicants. 7. Perusal of the record shows that within 90 days from the date on which the advocate for applicants became aware of the death of the respondent No.1a, an application was made by the applicants for bringing on record one of the legal representatives of the deceased respondent No.1(a). The said application was dismissed on technical ground that other legal representatives of the deceased respondent No.1 were not named therein. It is true that thereafter there has been some inaction on the part of the applicants. For various reasons, the applicants were required to change their advocates. Had the applicants not taken any action right from the year 1996 till 2009, the case would have been of a gross unexplained delay. As stated earlier in the year 1999 an attempt was made by the applicants to bring one of the legal 6 representatives of the deceased respondent No.1 on record. The names of the other heirs were not disclosed in the earlier application as the applicants were not aware about the same. The applicants are facing a decree of eviction. This is not a case where there is total neglect on the part of the applicants in as much as earlier they had made an attempt to bring one of the heirs of the deceased respondent No.1(a) on record. Considering the aforesaid circumstances, though the delay is very long, the same deserves to be condoned. The prejudice which may be caused to the respondents can be taken care of by directing the applicants to pay heavy costs. The amount of costs is quantified at Rs. 10,000/-. 8. Hence, I pass the following order: : O R D E R : (a) The application is allowed in terms of prayer clauses (a) to (c). The applicants shall pay a total amount of Rs.10,000/- by way of costs to the respondents. (b) The amount shall be paid to the advocate for the respondents or shall be deposited in this Court within a period of six weeks from today. 7 (c) Payment of costs or deposit thereof shall be a condition precedent. If the amount is paid within the stipulated time, writ petition shall be forthwith placed for final hearing on the relevant final hearing board. (A.S.OKA,J)