1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4108 OF 2009 1. Hiraman S/o Kishan Bhosale } Age : 22 Yrs., Occ. Agriculture, } R/o : Pithapuri, Tq. Paranda, } Dist. : Osmanabad. } 2. Baban S/o Kishan Bhosale } Age : 21 Yrs., Occ. Agriculture, } R/o : Pithapuri, Tq. Paranda,} Dist. : Osmanabad. } 3. Sojarbai W/o Kishan Bhosale } Age : 47 Yrs., Occ. : Labour } R/o : Pithapuri, Tq. Paranda, } .... PETITIONERS/ Dist. : Osmanabad. } ( ORI. PLAINTIFF) V E R S U S 1. Nagarbai W/o Daji Bhosale} Deceased Through L.Rs. } 1-A Vithabai W/o Shankar Gaikwad} R/o : Giralgaon, Tq.: Bhoom} at present R/o : Pithapuri,} Post Kapilapuri, Tq. Paranda,} .... RESPONDENT/ Dist. : Osmanabad. } ( ORI. DEFENDANT) Mr. V.G.Mete , Counsel for Petitioner. Mr. S.S.Kazi, Counsel for Respondent . 2 [ CORAM : K.K. TATED, J. ] DATE :20th AUGUST,2009 ORAL JUDGMENT : 1. Rule. Rule returnable forthwith. By consent, matter is taken on board for final hearing. 2. Heard Mr. V.G.Mete , Counsel for Petitioner. Mr. S.S.Kazi, Counsel for Respondent . 3. By this petition under Article 227 of the Constitution of India, the petitioner is challenging the Order dated 2/7/1996 passed by 2nd Additional District judge, Osmanabad below Exh. 13 i.e. for bringing legal heirs on record of deceased defendant. 4. A few facts of the matter are as under . The petitioner/original plaintiff filed Regular Civil Suit for declaration of title and permanent injunction in respect of property against the respondents, the legal heirs of original defendant. Said Suit came to be dismissed. Being aggrieved by the same Judgment and Decree dated 20/11/1986, petitioner/original plaintiff preferred R.C.A. No. 375 of 1986. During the pendency of said Appeal, original defendant died on 8/2/1994. Therefore, the petitioners preferred application dated 13/9/1995 below Exh. 13 for bringing legal heirs on 3 record. Said application was filed by the guardian/appellant in R.C.A. No. 375 of 1986, because at that time petitioner nos. 1 and 2 were minor. In the said application, petitioners stated that they had been to Pune for earning livelihood for about one year and when petitioner no. 3 returned back to village, he learnt about death of original defendant. Thereafter, petitioner no. 3 contacted their Advocate and filed application for bringing legal heirs on record on 13/9/1995 and prayed for condonation of delay. The said application below Exh. 13 came to be rejected on 2/7/1996 on the ground that petitioner failed to disclose any sufficient cause for condonation of delay. 5. Mr. S.S. Kazi, learned counsel appearing on behalf of respondent vehemently opposed the present Writ Petition. Respondent filed her affidavit in reply dated 11/8/1996 opposing the present Writ Petition. It is the contention of respondent that Writ Petition itself is not maintainable as the petitioner had earlier filed Civil Revision Application No. 1028 of 1996. He further submitted that the petitioner failed to disclose any cause in their application below Exh. 13 for condonation of delay and, therefore, the petition is liable to be dismissed. It is to be noted that earlier petitioner preferred C.R.A. No. 1028 of 1996. In the said C.R.A., Order came to be passed on 15/4/2009 allowing petitioner to convert the C.R.A. into Writ Petition subject to compliance as per requirement and subject to rules and regulations thereof. Therefore, the contentions raised by learned 4 counsel appearing on behalf of respondent that Writ Petition is not maintainable, can not be accepted. The learned counsel appearing on behalf of respondent states that petitioner failed to explain sufficient cause for condoning delay of more than one year for preferring application for bringing legal heirs on record of deceased defendant. In support of his contention, he relied on the Judgment of this Court in the matter of Kamalbai W/o Narasaiyya Shrimal and another V/s Ganpat S/o Vithalrao Gavare reported in 2007 (1) Mh. L.J. - 807 . It is stated in this authority that, “ Limitation Act (36 of 1963), S. 5 – Condonation of delay - Ground for condonation of delay must be spelt out clearly and distinctly in the application filed under Section 5. ” 6. It is admitted fact that whenever the application for condonation of delay is filed, it should contains the reason and explain the sufficient cause for condoning delay. In the present case, the petitioner specifically stated in their application that for their livelihood, petitioner no. 3 left for Pune. It is to be noted that Regular Civil Appeal was filed in 1986 and same was pending for a long time. In between, on 8/2/1994, original defendant expired . Neither the Advocate on record for deceased defendant intimated these facts either to the petitioner or their Advocate nor the legal heirs of deceased defendant intimated this fact to the petitioner. When the matter is pending for 5 sufficiently long period, it is very difficult for the litigant to know the exact status of the matter and parties. 7. Apart from that, the Apex Court in the matter of State of Haryana V/s Chandra Mani & Ors. Reported in JT 1996 (3) S.C. 371 held that, “ The expression “ sufficient cause ” should be considered with pragmatism in justice – oriented approach rather than technical detection.” 8. In similar way, the Bombay High Court in the matter of Baburao Deorao Wankhede V/s Sewa Sahakari Sanstha and others reported in 1989 Mah. L.R. 1144, held that , “ In the interest of justice, delay required to be condoned.” In that case, considering the facts and circumstances of the matter, the Court condoned delay for more than 10 years. 9. In the case in hand, there is delay of near about one year in filing application for bringing legal heirs of the defendant. It is the specific case of the petitioner that during that period, petitioner had left for Pune for livelihood. 6 10. Considering these facts, the order passed by 2nd Additional District Judge, Osmanabad below Exh. 13 is set aside. Application preferred by petitioner below Exh. 13 for bringing legal heirs of deceased defendant on record is allowed. Rule is made absolute accordingly. [ K.K. TATED ] JUDGE knp/WP4108.09