ca8704.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 8704 OF 2011 IN WRIT PETITION NO. 2957 OF 1992 Mankuwarbai w/o Chandrasing Patil (Since deceased, through L.Rs.) Gangabai Dhansing Patil and others ...Applicants Versus Gangaram Edoba Patil (Since deceased through his L.Rs.) Nathu s/o Gangaram Patil and others ...Respondents ..... Mr. S.P. Brahme, advocate for the applicants Mr. S.D. Kulkarni, advocate for respondents ..... CORAM: S.V. GANGAPURWALA, J. DATED: 29TH JULY, 2011 PER COURT:- 1 This is an application for condonation of delay of 12 years in bringing heirs of applicant No.1 and 10 years in bringing heirs of applicant No.3 on record and for setting aside the abatement. 2 Heard Shri. S.P. Brahme, learned counsel for the applicants and Shri S.D. Kulkarni, learned counsel for the non applicants. It is submitted by learned counsel for the applicants that the applicants are landless persons and are poor agriculturists. They reside in rural ca8704.11 -2- village and are not conversant with the legal proceedings, as such they may be allowed to be brought on record. Learned counsel contends that even otherwise the petition is pending, the present non applicants are in possession of the property, as such no prejudice would be caused to the non applicants. 3 Shri Kulkarni, learned counsel for the non applicants vehemently opposed the application and contended that there are absolutely no reasons given for condonation of delay in bringing the L.Rs. of applicant Nos. 1 and 3 on record. The delay cannot be condoned as a matter of course. For the said purpose, learned counsel placed reliance on the judgment of the Apex Court in the case of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A. AP. And Ors. reported in 2011 AIR SCW 1459 and contends that the courts do not enjoy unlimited discretionary powers but they have to exercise it in a systematic manner. 4 The abatement has to be strictly construed whereas the application for setting aside the abatement has to be liberally construed. It also cannot be construed so liberally so as to make provision of law superfluous as is held by the Apex Court in the judgment of Lanka Venkateshwarlu (supra). ca8704.11 -3- 5 In the present case, the present non applicants are in possession of the property. It is not that because of the death of petitioner Nos. 1 and 3 the writ petition was pending. Petitioner No.2 is alive and prosecuting the writ petition, as such it cannot be said that on account of non bringing of L.Rs. of applicant Nos. 1 and 3 the proceedings got delayed for 10 years. The non applicants are in possession. The applicants claimed to be landless persons. Taking into account the facet of the matter that the applicants are poor and landless persons and are residing in the remote village, I am inclined to condone the delay. At the same time, the applicants are required to pay some costs. 6 In view of the above, civil application is allowed in terms of prayer clause “B” and “C” on the condition of applicants pay cost amount of ` 3000/- ( ` Three thousand only) to the non applicants within a period of six weeks from today. Necessary amendment be carried out within two weeks from today. Civil application is disposed of. (S.V. GANGAPURWALA, J.) rlj/