Avdhut Shamrao Bhatkar (Deceased) through L.R.s vs Bombay Housing and Area Development Board and Others

P.S. Patankar, J.—Rule.

The learned Advocate for the Petitioners prays for deletion of Respondent No. 3 from this petition. Prayer granted.

Mr. Rane, Advocate for the Respondents waives notice. By consent rule placed for hearing forthwith.

The learned Advocate for the Petitioners on instructions states that the Petitioners want to delete the name of Respondent No. 3 from the Short Cause Suit No. 3923 of 1986 filed by Petitioners and that they are not interested in claiming any relief against the Respondent No. 3. The learned Advocate for the Respondent Nos. 1 and 2 have no objection for the same. However, the Petitioners to file a formal application to that effect in the trial Court.

The suit No. 3923/1986 came to be filed by Avadhut Shamrao Bhatkar, who expired on 27-12-1991. An application came to be filed on 15-7-1992 by the present Petitioners be bring themselves on record as heirs and legal representatives of the deceased Avadhut Shamrao Bhatkar. However, the learned Judge came to the conclusion that the said application has been filed beyond the period of 90 days. There was delay in filing the same was not explained by the Petitioners properly. In view of this, the said application came to be rejected by order dated 22-9-192 passed by the learned Judge of the City Civil Court, Bombay The same is under challenge in this Writ Petition.

The Petitioners explained the delay by saying that there was married sisters, who were heirs and legal representatives of the deceased. They were staying at different places and were required to be contacted and Vakalat taken. They have further explained that they were required to go to their native places for the purpose of performing the last rites of the deceased and that required lot of time.

In my opinion, the Petitioners have given sufficient explanation for the delay. In such cases it is cardinal principle of law that matters should be decided on merits and should not be dismissed because there is some delay. Therefore, the learned Judge has committed patent error in dismissing the said application.

In view of the above, the impugned order dated 22-9-1992 passed by the learned Judge of the City Civil Court, Bombay in Short Cause Suit No. 3923 of 1986 is set aside. The application dated 15-7-1992 filed by the Petitioners to bring themselves on record is granted. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.