SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2652 OF 2007 IN CIVIL APPLICATION NO.2255 OF 2004 IN WRIT PETITION NO.7570 OF 2004 WITH CIVIL APPLICATION NOS.2041/2008, 2042/2008, 2043/2008, 2044/2008, 2045/2008, 2046/2008, 2047/2008, 2048/2008 & 2255/2004 IN WP/7570/2004 Vitthal Jaisingh Khilare, Since deceased, through his legal heirs: 1a) Smt.Ranjana Vithal Khilare & Ors. ...Applicants Versus Shri Madhav Narayan Modak & Ors. ...Respondents ...... Mr.G.S.Godbole i/b Mr.A.B.Tajane & Mr.V.B.Tapkir for Applicants. Mr.Prathamesh Budhane i/b Mr.S.B.Deshmukh for Respondent No.3. Mr.Dilip Bodake for Respondent No.5. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 5, 2009. FEBRUARY 5, 2009. FEBRUARY 5, 2009. P.C. 1. Heard Counsel for the parties. : 2 : 2. In my opinion, this Application (CA/2652/2007) deserves to be allowed in the interest of justice. It is obvious that the earlier Civil Application No.2255/2004 was taken out under mistaken advise. Indeed, in order dated 22nd June 2007, the Court has observed that the Writ Petition abates. However, in the facts of the present case, the question of abating of Writ Petition would not arise. In any case, it is well established position that the Writ Petition does not abate in law which is restated in the decision of the Apex Court in the case of Puran Singh & Ors. Puran Singh & Ors. Puran Singh & Ors. vs. State of Punjab & Ors. reported in (1996) 2 vs. State of Punjab & Ors. reported in (1996) 2 vs. State of Punjab & Ors. reported in (1996) 2 SCC 205. SCC 205. SCC 205. 3. Besides, I find merits in the submission that the Petitioners/Applicants were ill-advised to file Civil Application No.2255/2004. Instead, the appropriate remedy for them was to approach the lower Court for correction of record and after that record was corrected, suitable amendment could have been prayed in the Writ Petition filed before this : 3 : Court. That is on account of the fact that the predecessor of the Petitioners died in anterior : 4 : point of time before dismissal of appeal on 2nd February 2002. 4. Taking any view of the matter, it is obvious that if at all the blame lies on the Advocate. For the mistake of the Advocate, as the litigant should not suffer, in the interest of justice, this Application is allowed in terms of prayer clauses (b) and (c). I am inclined to show this indulgence as the applicants have already paid costs in terms of earlier order passed by this Court on the present applications. 5. In terms of this order, Writ Petition No.7570 of 2004 is ordered to be restored to the file to its original number to be proceeded after the Petitioners would take steps to get the record of the lower Court corrected. That be done within eight weeks from today and after correction of record of the lower Court, formal amendment in the Writ Petition may be made, if required. If steps are not taken in time within eight weeks in terms of this order, Office shall treat the Writ Petition as dismissed for non-prosecution without further : 5 : reference to the Court. 6. On the other hand, if steps are taken in time, Writ Petition be listed on 13th April 2009. All companion Civil Applications be listed for orders along with Writ Petition on 13th April 2009. A.M.KHANWILKAR, J.