1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8386 OF 2009 Pushpa Lodha & Ors. ...Petitioners vs. Fredoon N.Dalal & Ors. ...Respondents Mr.Chetan Kapadia ib Mr.L.S.Law and S.R.Trivedi for the petitioners Mr.Shiraz Rustomjee a/w Farzana Behrarukamdin i/b M/s.FZB & Associates for respondent nos.1 to 6. CORAM :A.S.OKA,J. DATE : OCTOBER 6, 2009 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent nos.1 to 6. Respondent no.7 is already dead. 2 The respondent nos.1 to 6 are the original plaintiffs who filed a suit for mandatory injunction against the predecessor of the petitioners (defendant no. 2) and deceased respondent no.7 (defendant no.1). There was a decree for mandatory injunction directing the delivery of possession passed in the suit. An appeal was preferred by the predecessor of the petitioner and the respondent no.7 herein. The Appeal was admitted. The The Appeal was dismissed in default on 6 th July 2005. A Misc. notice no.199 of 2005 was taken out for restoration of the appeal. The said Misc. notice was taken out by both the appellants (original defendant nos.1 and 2). In 2 the said Misc. notice, an application was filed by the petitioners for deleting the name of the first appellant ( 7 th respondent herein) who had expired. The first appellant as noted by the Appellate Court died prior to 1 st August 2002. By the impugned order, the Appeal Bench of Court of Small Causes passed an order holding that as the heirs of the appellant no.1 were not brought on record, the entire proceedings of notice for restoration of the appeal stood abated. 3 This court was of the view that the notice for restoration of the appeal should be considered on merits as far as heirs of the second appellant i.e the present petitioners are concerned and the entire proceedings of the notice for restoration could not have been treated as abated. As this court was inclined to issue rule and keep the petition pending, the learned counsel for the respondent nos. 1 to 6 agreed for setting aside the impugned order of the Appeal Bench of Court of Small Causes and for directing the said Court to consider the prayer made in Misc. notice no.199 of 2005 for restoration of the appeal in so far as legal representatives of the second appellant are concerned. In view of this position, the following order is passed : i) Impugned order dated 1 st August 2009 is quashed and set aside. 3 ii)Misc.notice no.199 of 2005 does not survive in so far as first appellant is concerned. The notice shall survive in so far as the the petitioners are concerned. iii)The appellate Court will proceed to decide the said Misc.notice no.199 of 2005 in accordance with law. iv)The notice shall be disposed of expeditiously and preferably on or before 30 th November 2009. v) It is clarified that all contentions of the respondent nos.1 to 6 are kept open including a contention that in absence of legal representatives of the first appellant, the petitioners have no right to prosecute the appeal. JUDGE