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2017 DIGILAW 505 (RAJ)

JAGANNATH v. B. O. R.

2017-02-13

DINESH MEHTA

body2017
JUDGMENT : DINESH MEHTA, J. 1. Learned counsel for the respondents prays for further time to file response, to the instant application seeking setting aside abatement. 2. Mr. Sanjay Mehrishi, Learned counsel for the applicant opposes such request and submits that more than two years' has been allowed to the respondents for filing reply to this application, yet the respondents have not filed any reply. 3. Having perused the record of this case, this Court is of the considered opinion that enough time has been granted to the respondents for filing the reply to such application, hence respondent's right to file reply is closed. 4. Heard learned counsel for the parties on application IA No. 3209/2011, for condoning the delay in filing application for setting aside of the abatement and I.A. No. 3044/2011 under Order 22, Rule 9 of Code of Civil Procedure for setting aside the abatement. 5. According to the facts narrated in the applications, the writ petition No. 6042/1994 came to be decided vide order dated 05.05.2009. When a copy of the order was sent to the petitioners, their legal representatives came to know about such decision and thereafter, contacted their counsel and informed that petitioner No. 1 Jagannath had expired on 29.03.1996 and Dakha Bai petitioner No. 2 had died on 05.01.2008. 6. Learned counsel for the applicants submits that the appellants are illiterate people living in remote village and they were ignorant about the present case and requirement of getting LR's of the deceased petitioner on record. The delay was bona fide and if abatement is not set aside, their valuable rights will be impaired. 7. For the reasons stated in the application for setting aside abatement and the cause for delay mentioned in application filed under Section 5 of the Limitation Act, the delay in filing the application for setting aside abatement is condoned and the Abatement having taken effect on account of death of petitioner No. 1 & 2 is set aside. Application IA No. 3209/2011 as well as 3044/2011 are allowed. 8. As a result of the setting aside of the abatement, LR's of petitioners No. 1 & 2 mentioned in IA No. 3044/2011 are taken on record. 9. Learned counsel for the petitioner is directed to file amended cause title within a period of one week. 10. Application IA No. 3209/2011 as well as 3044/2011 are allowed. 8. As a result of the setting aside of the abatement, LR's of petitioners No. 1 & 2 mentioned in IA No. 3044/2011 are taken on record. 9. Learned counsel for the petitioner is directed to file amended cause title within a period of one week. 10. As a result of setting aside of the abatement and taking the LR's of the petitioners on record and by virtue of the order of Division Bench in D.B. Civil Special Appeal No. 10/2011, the order dated 05.05.2009 is recalled. 11. List this case for hearing afresh on 23rd of March, 2017. 12. Abatement Set Aside - Lrs. of deceased Appellants brought on record - Delay Condoned.