The present Civil Application has been filed by the applicant for setting aside the abatement of the First Appeal No.1178 of 1995 after condoning the delay of 4590 days caused in preferring the present application on the grounds stated in the application inter alia that the applicant was not aware about the pendency of the main First Appeal after the Appeal was filed and it is only when the matter was placed for final hearing in the year 2011, the instructions were sought by the learned counsel, who in turn received the instruction.
Learned counsel, Mr.Pradip Patel has referred to and relied upon the judgment reported in case of Perumon Bhagvathy Devaswom Perinadu Village Vs. Bhargavi Amma (dead) By Lrs. & Ors., (2008) 8 SCC 321 in support of his submissions and submitted that the negligence could be attributed only when he is aware about the pendency of the appeal and fails to take steps. He also also submitted that there may be a gap between admission hearing and final hearing during which such events occurs without knowledge.
Learned counsel, Mr.Nirzar Desai, however, resisted the present application stating that there is long delay and, therefore, abatement may not be set aside. He submitted that he ought to be aware and particularly when the matter was filed, it cannot be said that she may not be aware and, therefore, considering such long duration/period, the present application may not be allowed.
In view of the rival submissions and considering the observations made by the Hon'ble Apex Court in case of Perumon Bhagvathy Devaswom Perinadu Village (supra) in such cases with regard to pragmatic approach and considering the ground realities, the present application deserves to be allowed.
In the circumstances, the present application stands allowed in terms of Para No.12B. Delay caused in filing present application is condoned and the abatement of First Appeal No.1178 of 1995 is hereby set aside. Rule is made absolute.
First Appeal No.1178 of 1995 is ordered to be placed for final hearing on 28 th February, 2012. Learned counsel for the applicant is permitted to take appropriate steps for brining legal heirs of the deceased, Yogeshbhai Jani by filing appropriate application.
(RAJESH H.SHUKLA, J.) /patil Top