MARY PEREIRA Vs. ANANT MAHADEV VENGURLEKAR

JUDGEMENT

(1.) HEARD Shri V. Rodrigues, the learned Counsel appearing for the petitioners. None for the respondents though served. The above petition challenges the order dated 30/04/2009 whereby an application to bring on record one of the legal representatives of the deceased respondent no. 1 as well as application for condonation of delay came to be rejected.

(2.) THE short point for consideration in the present petition upon hearing learned counsel appearing for the petitioner is whether an application to bring the legal representatives of the excluded heir along with an application for condonation of delay also requires a prayer for setting aside abatement.

(3.) IT is well settled that once some of the legal representatives have already been brought on record within the time prescribed, the question that there was abatement of the suit for not bringing the legal representatives of the deceased on record would not arise. The petitioners had rightly filed an application to bring the other legal representatives on record along with the application for condonation of delay. Hence, the learned Judge was not justified to dismiss the application on the specious ground that an application to set aside abatement was not filed and therefore I find that the impugned order cannot be sustained and deserves to be quashed and set aside. The learned Judge as such erroneously dismissed the application filed by the petitioner whilst passing the impugned order. In view of the above, I pass the following order: