IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION CHAMBER SUMMONS NO.88 OF 2008 IN TESTAMENTARY SUIT NO.76 OF 2007 IN TESTAMENTARY PETITION NO.635 OF 2007 Shri.Dinkar Vasant Keny .. Plaintiff Vs. Mrs.Neelam Bhalchandra Vaity .. Caveatrix Mr.S.L.Desai i/by R.S.Desai for the petitioner. Mr.Mahendra Rathod i/by V.M.Jahveri for the caveator. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 03rd October 2008. : 03rd October 2008. : 03rd October 2008. P.C.: . Heard learned counsel appearing on behalf of the caveatrix in support of the chamber summons. The chamber summons has been taken out for condonation of delay in filing a caveat dated 19th November 2007 which was filed on 23rd November 2007 alongwith an affidavit in support dated 23rd November 2007. 2. In the affidavit in support, it is stated that the citation was served to the caveatrix on 08th November 2007. It is stated that she approached Mr.D.Y.Chitnis, advocate for filing a caveat which was 2 signed by her on 12th November 2007 and which was lodged thereafter. It is stated that Mr.Chitnis thereafter found that it will not be proper for him to represent the caveatrix and therefore he declined to appear. Therefore, another advocate was engaged through whom caveat was lodged on 19th November 2007. He submitted that the delay has been occasioned as Mr.D.Y.Chitnis, advocate who was earlier engaged by the caveatrix expressed inability to appear and therefore an affidavit in support of the earlier caveat could not be filed within the time provided in Rule 402 of the Bombay High Court Original Side Rules. 3. The learned counsel appearing for the petitioner while opposing the chamber summons submitted that this chamber summons has been taken out after the petitioner filed Chamber Summons No.55 of 2008 praying for dismissal of the caveat. He submitted that the chamber summons taken out by the caveatrix cannot be entertained as the same has been belatedly filed. He, therefore, submitted that no case is made out for condonation of delay. 4. I have carefully considered the submissions. It will be necessary to refer to what is set out in the 3 affidavit in support. Paragraphs 2 to 4 of the affidavit in support read thus: "2. I say that, I had accordingly filed a caveat through Mr.D.Y.Chitnis, Advocate on or about 20th November 2007. I say that the said caveat was signed by me on 12th November 2007, and thereafter the same was lodged and filed in this Hon’ble Court in its Testamentary Department. 3. I say that, after the above caveat was filed, thereafter, Mr.D.Y.Chitnis, Advocate had realized that, he had appeared and attended the family dispute by and between Vasant SAdashiv Patil and others in this Hon’ble Court being Suit No.88 of 1973; hence he had refused to appear on my behalf, in the above matter. I say that, Mr.D.Y.Chitnis had informed me that , he had attended the said matter, when he was working with M/s.Chitnis Vaithy & Co, Advocates and Solicitors, who were then representing Vasant Sadashiv Patil and others. 4 4. I say that, after Mr.D.Y.Chitnis, Advocate refused to appear on my behalf, I had, thereafter, engaged the services of Hasmukh A. Danewala, Advocate and filed another caveat, which was accordingly taken on record on or about 19th November 2007 and I have also filed my affidavit in support thereof, during that period. I say that, it is clear from the above that, there is no deliberate and intentional delay on my part in filing the caveat as well as my affidavit in support of the caveat in this Hon’ble Court." 5. It is very clear from the aforesaid assertions that there is no inaction or deliberate delay on the part of the caveatrix. In the circumstances, the delay deserves to be condoned and chamber summons is according made absolute in terms of prayer clause (a). (A.S.Oka,J)