Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 3559 of 1992 with CIVIL APPLICATION NO.2339 OF 2002 Smt. Jasudben Ratilal Parikh since deceased through LRs Mr. Devendra Ratilal Parikh & ors. ....Petitioners v/s. Smt. K.S.Parvati & ors. ....Respondents Mr. B.B.Parekh for the applicants. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 13TH JANUARY, 2009 : 13TH JANUARY, 2009 : 13TH JANUARY, 2009 P.C. . By the above numbered application, the Petitioners pray that the order passed on 1st July, 1999 on Civil Application No. 519/1999 as well as dated 24th January, 2003 passed in Civil Application No. 122/2003 be recalled and instead the said applications be allowed and the Writ Petition proceeded further. 2. In so far as delay in filing Civil Application No. 519/1999 is concerned, the same is of more than one year. In so far as application to recall order dated 24th January, 2003 is concerned, that relief is claimed by way of liberty granted to amend in terms of order dated 8th September, 2008. That means that delay in taking out application for the said relief is barred 2 almost by five years. Except stating that matter went by default on 24th January, 2003, no explanation has been offered. Notably, the order passed on 1st July, 1999 by the Additional Registrar was a conditional order, which came to be passed for default of the Advocate for the Petitioner. Even the order dated 24th January, 2003 came to be passed on account of default of the Advocate for the Petitioner. In that sense, in my opinion, no explanation whatsoever is offered to excuse such a long delay in taking out present application. Accordingly, the present application is rejected. As a consequence of this order, the Petition stands dismissed for non-prosecution as against Petitioner Nos. 1 and 2 respectively. 2. Even if the Petition is to proceed at the instance of Petitioners 3 to 5, after having gone through the affidavits filed alongwith Writ Petition, I am in agreement with the opinion recorded by the Lower Court that the stand taken by the Petitioners that they had no knowledge about the death of defendant nos. 1 and 2 is unacceptable. Indeed, the said defendants died at their native place in Kerala sometime in August, September 1978. However, it is noticed from the record that the Plaintiff’s Advocate called upon the Defendant’s Advocate to furnish information regarding the heirs and legal representatives of deceased defendants vide their 3 letter dated 10th November, 1978. Sending of that communication presupposes that the Advocate for the Plaintiffs and in turn the Plaintiffs were conscious of the said position. It is safe to infer that the said communication was sent under instructions of the plaintiffs. It is noticed that the Defendant’s Advocate sent reply to the said communication on 28th November, 1978 which was duly received by the then Advocate for the Plaintiffs-Petitioners. However, neither the plaintiffs nor their former Advocate during his lifetime till 1983 took any steps to move any application to bring on record heirs and legal representatives of deceased Defendants 1 and 2. If it was a case of inaction of the Advocate alone, that would have been a different matter. But the finding recorded by the Court below, with which I have no reason to disagree, is that, it can be safely assumed that Plaintiffs had knowledge about the death of deceased Defendants 1 & 2 in 1978, whereas the application for bringing heirs and legal representative on record came to be filed only at the end of year 1985 which is almost after seven years. As aforesaid, the only plea taken by the Plaintiffs was that they had no knowledge about the death of the concerned Defendants. That stand has been negated by the Lower Court on proper appreciation of material on record. It is not open for this Court to re-appreciate the same material and record a finding different than 4 the one recorded by the Lower Court, merely because some other view was possible. It is not a case of error apparent on the face of record. Taking over all view of the matter, no interference in exercise of writ jurisdiction is warranted. 3. Counsel for the Petitioners would,however, submit that the Court may take a lenient view and give one opportunity to the Petitioners. However, the manner in which the Petitioners have handled the proceedings, it is a clear case of neglect and indiligent approach of the Petitioners for reasons best known to them. In the peculiar facts of the present case, it is not possible to show any further indulgence to the Petitioners. 4. In the circumstances, Writ Petition as well as Civil Application stands dismissed. Ordered accordingly. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]