1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3576 OF 2009 Ananda Gajanan Salunkhe and another Petitioners versus Indubai Shamrao Patil and others Respondents Rajesh B. Parab for petitioners. CORAM : A.S.OKA, J. DATE : 24th July 2009 PC :- 1. Heard learned advocate for the petitioners. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 17th January 2009 passed by the Trial Court by which the suit filed by the first respondent has been restored in exercise of powers under Rule 9 of Order IX of the Code of Civil Procedure, 1908. The learned counsel appearing for the petitioners stated that though the application for restoration may have been filed within limitation, the suit of the year 1979 was prosecuted by the first respondent in a negligent manner. He pointed out that the application made by the first respondent to bring on record the legal representatives of the second defendant was allowed subject to payment of costs. However, the amount of costs has not been paid by the first respondent-plaintiff. He pointed out the averments made in the application made by the first respondent that the heirs of the second plaintiff and second defendant have not been brought on record. He submitted that the suit being for partition, the same cannot proceed in absence of legal representatives of the parties. 2 2. I have carefully considered the submissions. It is true that the suit of the year 1979 has remained pending for such a long time. The first respondent may not have prosecuted the suit diligently. The effect of the impugned order is that the suit has been restored. It is asserted in the petition that the age of the first respondent is 75 years and he is residing in a village. An indulgence has been shown by the Trial Court considering all the factors. It is not possible to interfere with the impugned order in writ jurisdiction. However, hearing of the suit cannot be prolonged further and a time bound schedule will have to be fixed. It will be open for the petitioners to point out to the Trial Court by taking out appropriate application that the heirs of the necessary parties have not been brought on record. It will be also permissible for the petitioners to raise the issue of maintainability of the suit in the light of the abatement of the suit as against concerned parties. 3. Hence, I pass following order :- (a) Subject to what is observed above, the writ petition is rejected; (b) The Trial Court is directed to conclude the hearing of the suit as expeditiously as possible and in any event before the end of January 2010. (A.S.OKA, J.)