Smt.Najimunnisa Begum W/O Umarkha Musalman(Dead) Thr Lrs. Akhtarkha Umarkha And ORS. v. Haji Rahematali S/O Sarfuddin(Dead) Thr Lrs.Maniruddin S/O Haji Rahematali And ORS.
cas1400&1401of17.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR CIVIL APPLICATION (CAS) 1400 OF 2017 & CIVIL APPLICATION (CAS) 1401 OF 2017 IN SECOND APPEAL 78 OF 2009 (Smt. Najimunnisa Begum w/o. Umarkhan Musalman & ors..vs..Haji Rahematali s/o. Sarfuddin & ors.) --------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
--------------------------------------------------------------------------------------------------------------------------------- Shri C.A. Joshi, counsel for applicants.
Shri N.D. Khamborkar, counsel for respondent 4. CORAM: ROHIT B. DEO, J.
DATE: 12 th MARCH, 2019.
This Civil Application is taken out by the appellants for condonation of delay of 3790 days in bringing on record legal heirs of deceased respondent 4 and for setting aside abatement. Concededly, the counsel who was representing respondent 4 did not bring on record that his client expired on 7.3.2007. It was only on 12.10.2017 when the matter was listed before the Registrar that the appellants came to know of the demise of respondent 4.
The proposed legal heirs of respondent 4 who are represented by learned counsel Shri N.D. Khamborkar, are opposing condonation of delay. However, the appellants can not be blamed for the delay. It was the duty of the counsel appearing for respondent 4 to disclose to the Court that his client had expired. There is nothing on record to suggest that the appellants were aware of the death of respondent 4 prior to
cas1400&1401of17.odt 2 12.10.2017.
In this view of the matter, the application is allowed. The delay in bringing on record the legal heirs of respondent is condoned. The abatement of the appeal as regards respondent 4 is set aside.
CIVIL APPLICATION 1401 OF 2017 The application is allowed.
The legal heirs to deceased respondent 4 be brought on record and the cause title be corrected within a week. The learned counsel Shri N.D. Khamborkar, waives service on behalf of the legal heirs of deceased respondent 4. At this stage, it is submitted by Shri N.D. Khamborkar that other than the legal heirs referred to in the application, there are three more legal heirs namely Javed Beg, Kamroddin and Abeda Bee. On the oral request of the learned counsel Shri C.A. Joshi, permission is granted to bring on record the aforesaid three legal heirs.
Shri N.D. Khamborkar, the learned counsel waives service for the said three legal heirs also.
JUDGE rsb