Sudhakar S/O Somaji Wankhede vs Ramchandra S/O Somaji Wankhede ...
2016 Latest Caselaw 6898 Bom

                                                1                      WP7133.14(J)
                                                                                          




                                                                                  
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.




                                                          
                             WRIT PETITION NO. 7133/2014

    Sudhakar s/o Somaji Wankhede (since dead)                  PETITIONERS
    Through Lrs-




                                                         
    1.  Chandrakala wd/o Sudhakar Wankhade,
         Aged 59 years.
    2.  Prashant Sudhakar Wankhade,




                                                    
         Aged 36 years.
    3.  Bharti d/o Sudhakar Wankhade,
         Aged 34 years.
    4.  Jyotsna d/oSudhakar Wankhade,
         Aged 32 years.
                                    
    All R/o Tarapur, Post Dahisar, 
    District Palghar

                                           --Versus ---
             
          



    1.         Ramchandra s/o Somaji Wankhede   ...      RESPONDENTS
               Through his Lrs -
               1(a)   Vilas Ramchandra Wankhede.





               1(b)   Kailash Ramchandra Wankhede
               Both adult, Occ.Agriculturist, R/o Ghatpuri,
               Tq.Khamgaon, District Buldhana.





    2(a)       Sau.Jaishri Ashok Deshmukh,
    2(b)       Girish Balkrishna Agnihotri
               Both R/o. Dal Fail, Khamgaon, District Buldhana.
    2(c)       Jamilabi Abdul Kadir Sk.
               R/o Shankar Nagar, Khamgaon, District Buldhana.




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                                                        2                                  WP7133.14(J)
                                                                                                              




                                                                                                    
    2(d)           DilipAnandrao Gadge
    2(e)           Kishore Kautikrao Thakre




                                                                            
                   Both R/o Dal Fail, Khamraon, District Buldhana. 
    ------------------------------------------------------------------------------------------------------
    Shri N.R.Saboo, Advocate, for the petitioner/s.




                                                                           
    Shri C.B.Dharmadhikari, Advocate for R. No. 2(a)

                   CORAM : R.K.Deshpande, J.

DATED : 02.12.2016

ORAL JUDGMENT

Rule, made returnable forthwith. Heard finally by the consent of

the learned counsels appearing for the petitioner and respondents.

2. The petitioner challenges the order dated 18 th January, 2014

passed by trial Court below Exh.72 in Regular Civil Suit No.63 of 1998

thereby rejecting the application for condonation of delay in filing

application for setting aside abatement and for bringing LR's of deceased

defendant no.1 on record. The trial Court has held that no sufficient cause

is made out for condonation of delay.

3. In Regular Civil Suit No.63 of 1998, the plaintiff has claimed the

reliefs as under :

3 WP7133.14(J)

"a. A decreee be passed in favour of the plaintiff and against the deft declaring that all the defts has no right title or interest

in the suit field as he has released his ownership rights in favour of the plaintiff.

b. A decree for permanent injunction in favour of the plaintiff

and against all the defts be passed directing the deft permanently from not indulging with the ownership right of

the suit field and not to effect any alienation in respect of the suit field.

c. Costs of the suit be awarded to the plaintiff against the defendant.

d. Any other just and proper relief be awarded in favour of the plaintiff and against the deft, as the court deems fit and proper."

4. The defendant no.1, who expired, was the real brother of the

plaintiff and he appears to have sold the property in favour of defendant no.

2, whose LRs are already on record. The trial Court ought to have issued

notice to the proposed Lrs and then should have passed an order. The trial

Court in such a situation ought to have taken liberal view of the matter,

particularly when none of the LRs of defendant-deceased have opposed the

claim before this Court in spite of service of notices to them. The delay was

4 WP7133.14(J)

of 34 months caused in filing the application for setting aside abatement

and bringing legal heirs on record.

5. Writ Petition is, therefore, allowed. The order dated 18 th

January 2014 passed below Exh.72 in Regular Civil Suit No.63 of 1998 is

hereby quashed and set aside. The delay caused in filing application for

setting aside abatement is condoned subject to condition that the petitioner

to pay costs of Rs.3,000/- to the respondent/defendant no.1.

JUDGE

Andurkar