1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2637 OF 2009 Namdeo s/o Baliram Rankhamb - APPELLANT VERSUS The State of Maharashtra - RESPONDENT ***** Mr.Prashant Deshmukh,Advocate for Appellant; Mr.TS Lodhe,AGP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 7th January, 2010. PER COURT : 1) Heard the learned Counsel for the appellant and learned AGP. The appeal is finally disposed of at admission stage. Perused the Record and Proceedings. 2) LAR No.311/1996, subsequently changed as LAR No. 499/2004, was pending before the learned Civil Judge, Senior Division, Omerga. By order dated 18th December, 2008, the leaned Judge dismissed the LAR for non-prosecution and hence this appeal. 2 3) The learned Judge has observed in paragraph 6 of the reasons that the matter is not diligently attended to by the Counsel representing the claimant/appellant. It is contended, vide Exhibit-13, an application was made by the Counsel that the applicant/claimant is no more and his legal representatives are to be brought on record. However, the learned Judge recorded, there was no such amendment carried to bring the legal representatives on record. The learned Judge even referred to the Death Certificate at Exhibit-14. I have gone through the record and I find no mistake can be attributed to the learned Judge as such application in LAR No. 311/1996 was moved requesting for bringing legal representatives on record. Mr. Deshmukh informs this was a mistake caused by the counsel representing the party as the appellant -Namdeo Baliram Rankhamb is alive, the person who expired was Namdeo Ramrao Rankhamb. He was claimant in LAR No.310/1996. Thus, laxity was on the part of the advocate and could not be attributed to the learned Judge. The learned Judge found that the matter was not attended since ten to twelve years fro the side of the appellant/claimant, as it was pending for recording evidence. 4) It is revealed, during the course of 3 submissions, that arising out of the same Award, different Land References were moved and LAR No. 260/2008 (old no.803/2002) is decided by the learned Judge. In fact, the Land Reference of the present appellant can be decided based on the above referred LAR. Taking survey of all the facts, the delay on the part of the appellant, cannot be said to be deliberate to avoid trial of the matter to get the Claim Petition decided on merits. The appeal needs to be allowed. The matter is remitted to the learned Civil Judge, Senior Division, Omerga, to decide the Claim Petition afresh. However, the claimant shall not be entitled to claim interest and other benefits for the period from 18.12.2008 to 7.1.2010, in which there was no claim pending. No costs. R. and P. be sent to the concerned immediately. (K.U.CHANDIWAL) JUDGE bdv/fa2637.09