1 WP-10646-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 10646 OF 2009 1. Shri Chandrakant Shamrao Jadhav ) 2. Shri Arun Shamrao Jadhav ) 3. Shri Ashok Shamrao Jadhav ) 4. Shri Madan Shamrao Jadhav ) All residing at 209, A-1/1B, ) Shamratna, Tarabai Park, ) Kolhapur. ).. Petitioners. Vs. 1. Smt. Nalinibai Nanasaheb Bhosale ) Age dult, occ. Housewife, ) R/at C-Ward, House No.263, Kolhapur. ) since deceased through his legal heirs, ) 1-a Shri Dattajirao Nanasaheb Bhosale, ) R/at C-Ward, House no.263, Kohapur. ) 2. Shri Dattajirao Nanasaheb Bhosale, ) 3. Shri Jaysingh Narayan Chavan, ) Since deceased through Legal Heir ) 3.a Shri Bhaskar Narayan Chavan, ) Age Adult, Occ. Nil, ) R/at A-ward, House No.559, ) Shivaji Peth, Kolhapur. ) 3.b Smt. Saraswati Narayan Chavan ) Since deceased through her legal heirs ) Smt. Akkubai Jaysingh Jadhav, ) Age 50 years, Occ. Housewife, ) 2 WP-10646-09.sxw R/at City Survey No.41, Shivaji peth, ) Kolhapur. ) 4. Shri Narayan Balwant Chavan, ) Since deceased through legal heirs ) 4.a Shri Bhaskar Narayan Chavan, ) Age Adult, Occ. Nil. ) R/at A-Ward, House No.559, ) Shivaji Peth, Kolhapur. ) 4.b Smt. Saraswati Narayan Chavan ) since deceased through her legal; heirs ) Smt. Akkubai Jaysingh Jadhav, ) Age 50 yrs. Occ. Housewife, ) R/at City Survey No.41, Shivaji Peth, ) Klhapur. 5. Shri Shamrao Namdevo Pawar, ) Age 64 Yrs. Occ. Nil. ) R/at Shivaji peth, near Khandoba Talim ) House No.603, Kolhapur. ) 6. Shri Bhaskar Narayan Jadhav, ) Age 62 years, Occ.Nil. ) R/at A-Ward, House no.559, ) Shivaji peth, near Sardar Talim, ) Kolhapur. )..Respondents Mr. Mandar V. Limaye, Advocate, for the petitioners Mr. Amit Shete, i/b. Amit B. Borkar,Advocate for the respondents Nos. 5 & 6. CORAM: J.H.BHATIA,J. DATE : 28th September, 2010. JUDGMENT: 3 WP-10646-09.sxw 1. Rule. Rule made returnable forthwith. Heard the learned Counsel. 2. One Shamrao Balwant Jadhav had filed Regular Civil Suit No. 758/1969 for redemption of mortgage and possession of the property. In that suit, one issue was raised about tenancy and therefore, the matter was referred to the Tenancy Court. After that question was finally decided, on 25.11.1996, the suit was taken up for final hearing. On that day, nobody was present and therefore the suit came to be dismissed. On 13.12.1996, on behalf of the plaintiff, his constituted attorney Chandrakant filed Misc. Civil Application No.173/1997 for restoration of the suit. Pending that application, on 7.3.1999, the plaintiff- Shamrao died. On 18.8.1999, the Advocate for the plaintiff brought this fact to the notice of the Court and the matter was adjourned to 31.8.1999 for taking appropriate steps to bring L.Rs. on record. On 31.8.1999, application Ex.34 was filed for bringing L.Rs. of the deceased plaintiff Shamrao on record. At the same time, Application Ex.33 was filed for condonation of delay of 123 days in filing the application. It was contended that Chandrakant son of deceased plaintiff Shamrao alone used to look after the Court matters. Because of his business, he was required to travel frequently to different cities for most of the time. On 31.3.1999, he had been to Delhi for his business. He came back a few days before filing the application, but due to some urgency he could not meet the lawyer and 4 WP-10646-09.sxw finally on 28.8.1999, he contacted the lawyer and then he was told that an application for bringing the L.Rs. on record was necessary. Thereafter, the application was moved. The application was opposed on behalf of the defendant. After the lengthy arguments, the learned trial Court rejected the application Ex.33 holding that satisfactory reason was not given for the delay. 3. On perusal of the impugned order, it is clear that the suit was pending for about 27 years when it was dismissed in default. The parties were contesting the matter before different Courts as the issue about tenancy was referred to the Tenancy Court and the matter had gone up to the High Court. In such circumstances, after the decision of the High Court on the said issue, suit was taken up on board and it was dismissed in default. Thereafter, the application for restoration of that suit was pending and on 7.3.1999, the plaintiff died. It appears that the plaintiff was an old person. He was already in litigation for about 30 years before his death and the suit was not decided. Explanation about delay was given. His son Chandrakant used to be away from the town in connection with business and that on 28.8.1999 when he contacted lawyer, he came to know that application for bringing L.Rs. was necessary. Time and again it has been held by this Court as well as the Supreme Court that in respect of condonation of delay in bringing L.Rs. or for setting aside the abatement or for restoration of suits or 5 WP-10646-09.sxw appeals, Court should take liberal view if it leads to interest of justice. The trial Court noted that in Kamlabai Narsayya Shrimal vs. Ganpat Vithalrao Gaware 2008 (2) ALL MR 52, it was held that after the suit was abated, it creates valuable rights in the party and therefore, it is not proper to interfere in those rights. In my considered opinion, this judgment is not applicable to the facts of the present case. In the present case, parties were litigating before different fora for about 30 years and if the delay of 123 days in bringing the L.Rs would have been condoned, no prejudice could be caused to either side. In view of the long drawn litigation, it was in the interest of justice to allow the application and to condone the delay and to allow the application for bringing L.Rs. on record. The learned trial Court took very technical view of the matter which would not boost the interest of justice. It is erroneous that the application of the plaintiff was rejected because, according to the trial Court, the reason for delay of 123 days was not satisfactory, but at the same time, the trial Court took more than nine years to dispose of such application. 4. In view of the above circumstances, the Writ Petition is allowed. The impugned order is set aside. The Application Exhibit 33 is hereby allowed. Delay is condoned and trial Court shall allow the application for bringing the L.aRs. of the deceased plaintiff on record. It goes without saying that by this time 6 WP-10646-09.sxw the suit is more than 40 years old, therefore the trial Court shall expedite and dispose of the suit as early as possible. (J.H.BHATIA,J.)