1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2760 OF 2009 IN WRIT PETITION NO. 731 OF 1998 Smt. Lachmi L.V. Vazirana. .. Petitioner Vs Sarokh Rustom Delkhan. .. Respondent And Mrs.Meera Mukhopadyay .. Applicant -- Shri Shriram S. Redij for the Applicant. Shri H.K. Vazirani & Pushpa Goswami for the Respondent. -- CORAM : A.S.OKA, J. DATE : 8th January 2010. P.C: 1. Heard the learned Advocate for the Applicant and the learned advocates for the Respondent. The Writ Petition was dismissed on 15th September, 2009 by this Court when it was pointed out by the Advocate for the Respondent that the sole Petitioner had died on 24th October, 1998. As the application for bringing on record the heirs of the deceased was not on record, the Writ Petition was dismissed. 2. In the present application filed by the Applicant claiming to be daughter of the Original Petitioner, it is stated in Paragraph 7 as under:- 2 “7. The Applicant states that she was represented by same Advocate in the Trial Court as well as in the above writ petition. She instructed him to file applications in all the proceedings to bring her name on record as legal heir of her deceased mother. Accordingly, the name was brought on record in the Trial Court. The Applicant states that her Advocate called her in High Court for affirmation of Civil Application which was for bringing legal heirs on record. The said Civil Application was affirmed by the Applicant and the copy of the same was given by her Advocate to her in December, 1999 only. The Applicant further states that her Advocate intimated her that the said Civil Application in filed. Hereto annexed ad marked as EXHIBIT B is copy of the said Civil Application dated 22/12/1999.” 3. In Paragraph 9 of the Civil Application, the Applicant has stated thus: - “9. The Applicant states that she was always under impression that the above civil application of which copy was given was filed by her Advocate. The said civil application was affirmed by her in December, 1999 and her Advocate always kept her in impression that the said Civil Application if filed. In the above circumstances, the above writ petition came to be abated and dismissed. The Above circumstances are beyond the control of the Applicant and therefore, the above order dated 15/09/09 is required to be set aside and the above petition is required to be restored to file.” 4. A copy of the Civil Application allegedly drafted by the earlier Advocate representing the Original Petitioner has been annexed to the Application. The contention of the Applicant is that in the year 1999 itself, the application for bringing her name on record was affirmed but it appears that her earlier Advocate has not filed the same. 3 5. Learned counsel appearing for the Respondent opposed the Application by contending that no such Application was drafted and affirmed. In fact, in Paragraph 7 of the Affidavit-in-reply, the Respondent himself has stated that on the date on which the Petition was dismissed, this Court inquired from the Applicant, who appeared in person, as to whether she had taken out such application and the Applicant appearing in person stated that she had taken out such Application. This shows that the Applicant was under an impression that the Application which was signed and affirmed by her was filed by her advocate. Learned advocate appearing for the Respondent submits that there is no affidavit of the earlier Advocate in support of the statements made in the Application. Normally, no Advocate will come forward and file Affidavit accepting such default on his part. Even a copy of the Application which was drafted by the Advocate has been annexed to this Application. Learned counsel appearing for the Respondent states that he has taken search of the record but no such application has been found. The case of the Applicant is that though the Application was affirmed by her, it was not filed by her earlier Advocate. Therefore, the search taken will not show that the Application was filed. Learned counsel appearing for the Respondent stated that even the original affirmed application was not produced by the Applicant. The case of the Applicant is that the original application was affirmed by her and the same was not filed by the Advocate. It is, therefore, obvious that the Applicant could not be in possession of the original affirmed application. 4 6. In the Application, the Applicant has stated that in all other proceedings, she has taken steps to bring her name on record. The case made out by the Applicant in the Civil Application will have to be accepted. It is true that, prejudice will be caused to the Respondent if the Petition is restored. Therefore, the Applicant will have to pay costs of this Application quantified at Rs.7,500/- to the Respondent. Hence, I pass the following order. (a) The Civil Application is allowed in terms of prayer clauses (a) to (d) subject to condition of the Applicant paying costs of Rs.7,500/- to the Respondent within a period of four weeks from today. Payment of costs will be a condition precedent. (b) If compliance is made, the Writ Petition shall be placed for final hearing on 15th February, 2010. (A.S.OKA,J)