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Judgment
A.P. Lavande, J.—Heard Mr. Nitin Sardessaai, the learned Counsel for the Petitioners.
On 13th November, 2009, this Court issued notice to the respondents for final disposal of the writ petition at admission stage. Although the respondents have been served, they have chosen not to put in appearance. In view of the order dated 13th November, 2009 the petition is being finally disposed of. Hence Rule.
By this petition, the Petitioners are challenging the order dated 14th September, 2009 passed by the learned Civil Judge, Senior Division, Ponda, passed in Regular Civil Suit No. 122/97/A dismissing the applications seeking condonation of delay to bring the legal representatives of plaintiffs No. 1 and 5 on record.
The facts leading to filing of the present petition are as under:
The Petitioners filed the above referred suit against the defendants/respondents seeking a declaration that they are owners in possession of the plot admeasuring 10,260 square meters of the property surveyed under survey No. 54/1 of village Kavle. The Petitioners also sought permanent injunction and other consequential reliefs. The defendants contested the suit by filing the written statements. On 4.11.1999, in view of the pendency of the old matters, the suit was adjourned sine die. On 4.6.2009 the matter was taken up by the learned Civil Judge, Senior Division, Ponda and notices were issued to the parties, for taking up the matter for hearing. On 20.6.2009, the advocate appearing for the plaintiffs informed the Court that plaintiff No. 1 and plaintiff No. 5 had expired. Time was granted to take appropriate steps and the matter was adjourned to 4.7.2009. On 4.7.2009 itself, the advocate appearing for the plaintiffs No. 2,3,4 filed applications to bring the legal representatives of the plaintiffs No. 1 and 5 on record and thereafter on 13.8.2009 filed applications seeking condonation of delay, in filing applications to bring the legal representatives of plaintiff No. 1 and 5 on record. The applications were primarily resisted by the defendants Nos. 3 and 4. The learned trial Judge by the impugned order dated 14.9.2009, dismissed the applications primarily on the ground that no sufficient cause was shown and held that though the suit was adjourned sine die, the same by itself was not sufficient for condoning the delay and to permit the legal representatives of plaintiff No. 1 and 5 to be brought on record. The present petition has been filed by the petitioners i.e. plaintiffs No. 2 to 4 and 6.
As stated above, inspite of notice for final disposal of the petition, the respondents have chosen not to put in their appearance.
Mr. Sardessai, the learned Counsel for the petitioners submitted that the plaintiff No. 1 expired on 12.8.2008 and the plaintiff No. 5 expired on 1/3/2009 and considering that the suit was kept sine die, it cannot be said that the plaintiffs were guilty of gross negligence or of inaction in brining the legal representatives of the plaintiffs No. 1 and 5 on record. Mr. Sardessai further submitted that sufficient cause has to be shown and liberal view has to be taken in view of the Apex Court''s catena of decisions. He further submitted the impugned order has resulted in dismissal of the suit, in as much as the suit filed is for declaration. He, therefore, submitted that the impugned order should be quashed and set aside on appropriate terms and conditions.
I have carefully considered the record and the submissions made by the learned Counsel appearing for the petitioners.
The record discloses that the suit was adjourned sine die on 4.11.2009, and that the matter was taken up after a period of almost 10 years. The advocate appearing for the plaintiffs had informed the Court that the plaintiffs No. 1 and 5 had expired. Thereafter, applications for bringing their legal representatives on record were filed on 4.7.2009 and an application seeking condonation of delay was filed on 13.8.2009. Considering the fact that the plaintiff Nos. 1 and 5 had expired on 12.8.2008 and 1.3.2009, respectively, and having regard to the fact that the suit was adjourned sine die, the delay on the part of the petitioners to file applications to bring their legal representatives cannot be said to be intentional nor any gross inaction can be attributed to the surviving plaintiffs and therefore the impugned order is liable to be set aside.
It is well settled by a catena of decisions of the Apex Court that the term "sufficient cause" has to be liberally construed. Moreover, by the impugned order the plaintiffs have been nonsuited since the suit is for declaration and other consequential reliefs. In my considered opinion, the learned trial Judge ought to have granted the applications by imposing costs in favour of the contesting defendants.
In my view, the jurisdiction has not been correctly exercised by the learned trial Judge while passing the impugned order. Considering the delay and the facts and circumstances of the case, the learned trial Judge ought to have condoned the delay in filing the applications for brining the legal representatives of plaintiff No. 1 and 5 on record. The impugned order is, therefore, unsustainable in law.
In view of the above discussion, the impugned order dated 14.9.2009 is quashed and set aside. The delay in brining the legal representatives of plaintiffs No. 1 and 5 is condoned and the legal representatives of plaintiffs No. 1 and 5 are permitted to be brought on record, subject to the petitioners paying costs of Rs. 750/- each to the contesting respondents/defendants No. 3 and 4 within a period of four weeks. The amendment to the cause title in the suit to be carried out within two weeks. The ad-interim relief granted by this Court, vide order dated 13.11.2009 staying the proceedings in the suit is vacated. The parties shall appear before the learned trial Judge on 14.9.2010 at 10.00 a.m.
The writ petition stands disposed of in the aforesaid terms.