1. Civil Application No. 7649/2011 under Section 5 of the Limitation Act has been preferred by the applicant to condone the delay of 360 days in filing the Second Appeal against the judgment and order dated 16/06/2009 passed by the learned Additional District Judge, Narmada, Rajpipla in Regular Civil Appeal No. 60/2006 (old Regular Civil Appeal No. 25/2002) by which the learned appellate Court has dismissed the said Appeal preferred by the applicant confirming the judgment and decree passed by the learned trial Court dismissing Regular Civil Suit No. 80/1984.
2. It appears that this Court directed to issue Rule upon the concerned respondents and it is reported it is reported that respondents nos. 3 and 5 to 7 have died and, therefore, notice of Rule upon respondents nos. 3 and 5 to 7 is unserved.
3. Shri Jinesh Kapadia, learned advocate appearing on behalf of the applicant has stated at the bar that subsequently he has come to know that as such respondents nos. 3 and 5 to 7 have died/expired during pendency of Regular Civil Appeal No. 60/2006 (old Regular Civil Appeal No. 25/2002) before the judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 60/2006 (old Regular Civil Appeal No. 25/2002). Under the circumstances, he seeks permission to withdraw the present Civil Application for condonation of delay as well as Second Appeal (Stamp) No. 89/2011 with Civil Application (Stamp) No. 6276/2011 as the applicant proposes to submit an appropriate application before the learned appellate Court for bringing the heirs of respondents nos. 3 and 5 to 7 on record of the aforesaid Appeal and for setting aside abatement of Regular Civil Appeal No. 60/2006. Permission is accordingly granted. The present Civil Application, Second Appeal (Stamp) No. 89/2011 and Civil Application (Stamp) No. 6276/2011 are hereby dismissed as withdrawn with the above liberty. As and when such an application is made before the learned appellate Court the same be considered in accordance with law and on its own merits for which this Court has not expressed anything on merits in favour of either parties. Rule is discharged in Civil Application No. 7649/2011.
(M.R.
SHAH, J.) siji Top