KBP 1204-03.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1204 OF 2003 WITH CIVIL APPLICATION NO.1770 OF 2002 WITH CIVIL APPLICATION NO.1203 OF 2003 WITH CIVIL APPLICATION NO.1769 OF 2002 IN WRIT PETITION NO.3954 OF 1998 Mrs.Shashi P.Sachdeva & ors. .. Applicants V/s. Lalji Tulsidas Maheshwari .. Respondent ......... Mr.Kapil Kumar Sachdeva, Applicant No.2 in person. Mr.G.N.Pandit, for Respondent. ......... CORAM : A.S.OKA, J.. DATE : 5 th August, 2009. P.C. : 1] I have heard applicant no.2 – Kapil Kumar Sachdev who is appearing in person for himself and as the constituted power of attorney of the other applicants. I have also heard learned counsel appearing for respondents. 2] Applicants claim to be legal representatives of the original petitioner in writ petition No.3954 of 1998. By order dated 1st September, 1998 the said writ petition was dismissed for non prosecution when the Advocate for petitioner in the said writ petition was absent. After the petition was dismissed an application was made by the present applicants on 2 nd July, 1999 for bringing legal representatives of the petitioner in the writ petition on record. It is stated in the said application that the sole petitioner died on 6 th May, 1999. Civil Application no.1769 of 2002 has been filed by the legal representatives of the petitioner. The prayer in the said application KBP 1204-03.sxw 2 made by the legal representatives of the petitioner is for condonation of delay. It is pointed out in the said application that the applicants were not aware of the dismissal of the petition. That is how, on 2nd July, 1999, they filed an application for bringing their names on record of the writ petition. The prayer in the said application is for condonation of delay in filing the application for restoration. 3] Civil Application no.1770 of 2002 has been filed for restoration of the writ petition. Civil Application no.1203 of 2003 has been filed by the legal representatives of petitioner praying for amendment in the Civil Application no.1769 of 2003. Civil Application no.1204 of 2003 has been filed seeking permission to amend the Civil Application no.1770 of 2002 for restoration. 4] The opposition of the learned counsel for respondent to the prayers made in these applications is that there has been a gross delay in applying for restoration of the writ petition. He pointed out that though the writ petition was dismissed on 1st September, 1998, the application for restoration has been filed on 27 th February, 2002. He submitted that very fact that earlier the present applicants applied for bringing their names on record of the petition shows that the applicants must be aware of the proceedings of the petition and, therefore, now the petitioners cannot plead ignorance about the dismissal of the writ petition. Relying upon the reply filed by the respondent to the application for restoration as well as other applications, he submitted that the applicants should not have slept over the matter for more than four years. He submitted that the applicants did not bother to inquire about the fate of the petition though all information was available on the web site. He further submitted that now the applicants are trying to shift entire blame on the advocate appointed for the applicants. 5] I have perused the application for condonation of delay and application for restoration of writ petition. It is pertinent to note that the writ petition was dismissed on 1st September, 1998 and on 6th May, 1999 the predecessor of the applicants i.e. Original petitioner died. The applicants filed a Civil Application (No.1771/2002) on 2nd July, 1999 for bringing their names on record of the petition. The said application has been filed through the same advocate who was representing the original KBP 1204-03.sxw 3 petitioner in the writ petition. It is obvious that the application was drafted by the same advocate. The averments made in the said application show that the advocate appointed by the original petitioner was not aware that on 1st September, 1998, the writ petition was already dismissed for non prosecution. The fact that after demise of the original petitioner, the applicants approached their advocate for filing application for bringing their names on record shows that the applicants are diligent enough. 6] The averments made in the aforesaid applications filed by applicants also show that at least as on 2nd July, 1999 applicants were not aware of the dismissal of the main writ petition. In the application for condonation of delay (Civil Application NO.1769 of 2002) as well as in the application for restoration it is stated that the original petitioner as well as applicants were under the bona fide impression that writ petition was pending. It is stated that the applicants became aware for the first time on 31 st January, 2002 that the main writ petition was dismissed. Thereafter, on 5 th April, 2002 the application for condonation of delay and application for restoration have been filed by the applicants. Though a reply is filed to the civil application by the respondent to the writ petition, the respondent has not come out with a specific case that on any particular day prior to January, 2002 the applicants were aware about the dismissal of the writ petition. Considering the aforesaid factual aspects, a case is made out for condonation of delay and for restoration of writ petition. 7] Learned counsel for respondent has invited my attention to the averments in the Civil Application No.1203 and 1204 of 2003 filed by the applicants. The said averments relate to the merits of the petition and the said averments are, therefore, not relevant. 8] If petition of the year 1998 is to be restored in the year 2009 it is obvious that the respondent will suffer prejudice. The petition arises out of a declaratory suit of the year 1975. Therefore, for compensating the respondent, the applicants will have to pay heavy costs. Considering all these aspects , the amount of costs is quantified to Rs.10,000/-. Hence, I pass the following order: KBP 1204-03.sxw 4 (a) Civil Application No.1774 of 2002 is allowed in terms of prayer clauses “a” and “b”. (b) Civil Application No.1769 of 2002 is allowed in terms of prayer clause “a”. (c) Civil Application No.1770 of 2002 is allowed in terms of prayer clause “a” and the writ petition is restored to the file. (d) Civil Application Nos.1204 of 2003 and 1203 of 2003 are rejected. (e) The applicants in the application for restoration are directed to pay costs of Rs.10,000/- (Rs.Ten Thousand) to the respondent within a period of four weeks from today. If the amount is not paid within stipulated time or is not deposited in this court within stipulated period, the order of dismissal of writ petition will stand. (f) If compliance is made by the applicants as regards direction to pay the costs, the writ petition shall be placed for admission on 24th September, 2009. ( A.S.OKA, J. )