Bombay High Court
GULAB GAJANAN THOPATEversusPARBHAKAR DADASO YADAV AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- SANDEEP V MARNE
Holding
The trial court erred in refusing to condone the delay and in requiring the condonation application to be filed with the other applications, so the order was set aside and the petitioners' applications were allowed.
Summary
The petitioners challenged a July 2022 order of the Civil Judge, Junior Division, Saswad, which rejected their applications to bring the legal heirs of a deceased plaintiff on record, to set aside an abatement, and to condone delay in seeking that set‑aside. The plaintiff had died in December 2016 and the death certificate was issued in March 2017, after which the applications were filed, albeit with some delay. The trial court took a hyper‑technical view, holding that the condonation application should have been filed together with the other two applications and therefore dismissed all three. The High Court examined whether such procedural rigidity was justified and whether the delay was substantial enough to warrant dismissal. It concluded that the delay was insignificant, that the condonation application could be filed separately, and that the trial court’s reasoning was indefensible. Consequently, the High Court set aside the impugned order and allowed the applications at Exhibits‑43, 44 and 51, granting the petitioners’ relief without costs.
Issues considered
- Whether the delay in filing applications for bringing legal heirs on record and for setting aside abatement can be condoned.
- Whether an application for condonation of delay must be filed together with the substantive applications.
- Whether the trial court’s order rejecting the applications is liable to be set aside.
Subjects
- legal heirs
- abatement
- condonation of delay
- civil procedure
- writ petition
- order set aside
- procedural delay
Judgment
2026:BHC-AS:5361
Megha 9_WP_13589_2022.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13589 OF 2022
Gulab Gajanan Thopate and Anr. ...Petitioners
V/s.
Prabhakar Dadaso Yadav and Ors. ...Respondents
______________
Mr. Pritam S. Nigade for the Petitioners.
______________
CORAM: SANDEEP V. MARNE, J.
DATED: 2 FEBRUARY 2026.
P.C.:
1) Petition challenges order dated 25 July 2022 passed by the
learned Civil Judge, Junior Division, Saswad, District-Pune, rejecting
Petitioners’ Applications at Exhibits-43, 44 and 51. The Application at
Exhibit43 was for bringing the legal heirs of the Plaintiff on record.
The Application at Exhibit-44 was for setting aside the abatement and
Application at Exhibit-51 was for condonation of delay in setting aside
the abatement.
2) I have heard Mr. Nigade, the learned counsel appearing
for the Petitioners and considered the submissions canvassed by him.
3) By order dated 21 November 2022 this Court had issued
notices to the Respondents. Office report indicates that notices have
duly been served upon Respondent Nos.1, 2, 4 to 9, 10A to 10C and
Page No. 1 of 3
2 February 2026
Megha 9_WP_13589_2022.docx
11. Report further indicates that Respondent No.3 is dead but his legal
heirs are Respondent Nos.1 and 2, who are already on record. None
has appeared on behalf of the Respondents despite being duly served.
Accordingly, I decided to hear the Petition on merits.
4) It appears that sole Plaintiff in the Suit has expired on 26
December 2016. Legal heirs awaited issuance of death certificate,
which was issued on 23 March 2017. Immediately thereafter
Application at Exhibit-43 was filed on 25 July 2017 for bringing legal
heirs of the deceased Plaintiff on record. On the same day, another
application at Exhibit-44 was filed for setting aside abatement. Since
there was delay in filing application for setting aside abatement, the
Petitioners filed a separate application at Exhibit-51 for condonation of
delay.
5) Perusal of the impugned order would indicate that the
learned Trial Judge has adopted hyper-technical approach in holding
that the Application for condonation of delay ought to have been filed
with Applications at Exhibits- 43 and 44. The delay in filing
Application for bringing legal heirs on record and for setting aside the
abatement was insignificant and ought to have been condoned by the
Trial Court for the purpose of ensuring further carriage of the Suit to
its logical conclusion on merits. The Reasons adopted by the Trial
Court while rejecting the Applications do not appeal to this Court. The
impugned order is indefensible and liable to be set aside.
6) The Petition accordingly succeeds. Order dated 25 July
2022 is set aside. The applications preferred at Exhibits-43, 44 and 51
are made absolute in terms of the prayers made therein.
Page No. 2 of 3
2 February 2026
Megha 9_WP_13589_2022.docx
7) Writ Petition is allowed in above terms. There shall be no
order as to costs.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab
Page No. 3 of 3
Designation: PA To Honourable Judge 2 February 2026
Date: 03/02/2026 12:05:42
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