1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NMT/112/2009 IN TESTAMENTARY SUIT NO.32 OF 1994 IN TESTAMENTARY PETITION NO. 402 OF 1993 Nilesh R. Patkar ...Plaintiff Vs. Prakash B. Raikar ...Defendant Ms.Vasudha Narvekar for the Plaintiff. Mr.Warerkar i/b. Warerkar & Warerkar for the Defendant. CORAM :- ANOOP V. MOHTA, J. DATED :- 10th November, 2009. P.C.- 1 This Notice of Motion is taken out by the plaintiff, who is the sole Executor of the Will of deceased Balkrishna Raikar. The sole beneficiary, as per the Will is Nirmala Patkar, who is daughter of the deceased. 2 By order dated 7.1.2008, this Court has dismissed the matter as none appeared on behalf of the plaintiff/petitioner even on earlier occasion till 17.12.2007. 3 The learned counsel appearing for the respondent/caveator has filed reply and opposing the same with basic submission that there is 2 no justification and/or sufficient reason made out to condone the delay and/or restore the Suit. The applicant has filed rejoinder also. 4 The fact remained that on earlier two occasions, as recorded, the plaintiff was not present in person as his father late Ramakant Patkar, who was practising Advocate, used to appear and keep track of the matter. In this background, it cannot be said that the plaintiff/petitioner intentionally and/or deliberately not attended the matter. 5 The plaintiff’s father expired on 10th July, 2008. The matter was dismissed on 7.1.2008. It means that his father was also not aware of the proceeding/order of dismissal. 6 Some time in June, 2009, the plaintiff’s Advocate attending the Suit informed about the dismissal of the matter and thereafter moved this application on 30th July, 2009. This also, in my view, is sufficient reason to consider the case of the plaintiff/petitioner. 7 There are various documents/certificates supporting the reasons of Mr.Patkar. Though those were from the year 2002 to 2007, yet the fact remains that he was ill. The submission that he attended some other personal matter that itself, in my view, cannot be the reason to overlook the averments made in the petition and the Notice of Motion. 8 Strikingly, neither the plaintiff nor the defendant is benefited by this dismissal of the Suit, but only daughter who is named in the Will as a sole 3 beneficiary is affected. In my view, because of default of plaintiff, she should not suffer grave injustice and basically in view of the intention of the deceased as he had bequeathed the whole property to the beneficiary named in the Will. 9 Therefore, in the interest of justice and even otherwise, as case is made out, I am inclined to grant this Notice of Motion in terms of prayers (a) and (b). 10 However, this is subject to cost of Rs.15,000/- to be paid within four weeks as a condition precedent. (ANOOP V. MOHTA, J.)