1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4140 OF 2010 IN FIRST APPEAL NO. 817 OF 1997 Mr Madhav Mukundrao Mungre and ors. .. Applicants. Vs. Mrs Meerabai Jagatkumar Mungre and ors Respondents. Mr. Karl Shroff a/w Khyati Ghevaria i/b Dhru & Co, for the applicants. Mr. B.Unnikrishnan,for the respondents. CORAM : D.B.BHOSALE, J. DATED : 02/12/2010. PC: 1. By this civil application, the applicants have prayed for allowing them to bring on record the heirs and legal representatives of the deceased-respondent no.1, who died on 12.11.2006. There is delay of three years and 231 days caused in filing the appeal. The respondents have opposed the prayer by filing reply affidavit. I have heard learned counsel for the parties. Mr Unnikrishnan, learned counsel for the respondents, at the outset, invited my attention to Exhibit-A to their affidavit, which is a letter written by their Advocate C.B.Yadav addressed to the Advocates for the applicants-M/s Dhru & Co. By this letter, Advocate Yadav had informed the Advocates for the T 2 applicants about the death of respondent no.1 and the names of his heirs. This letter was received by the Advocates for the applicants. A copy of the letter was marked to the applicants. In view thereof, the learned counsel for the respondents submitted that substantial compliance of the provisions contained in Order 22 rule 10A of CPC was made by the respondents and despite this there is delay of more than three years in filing this application and hence the application deserves to be rejected. It was also submitted that the applicants had attended the last rites of the deceased- respondent no.1 which further shows that they had knowledge of his death. 2. I have perused the application and more particularly paragraph 31 thereof. Paragraph 31 of the application reads thus : “The applicants submit that the above matter was handled by Mr K.M.Parekh, one of the partners of M/s. Dhru and Co, Advocates for the applicants. The said Mr K.M.parekh expired on 10th December, 2005. After the death of Mr K.M.parekh his junior who was attending the above matters under late Mr K.M.Parekh also left M/s Dhru and Co. Assuming without admitting that the said letter dated 18th December,2006 in fact was addressed by Shri C.B.Yadav to M/s Dhru & Co and in fact it was delivered to M/s Dhru & Co as alleged it appears that the said letter is misplaced or remained unattended in the aforesaid circumstances during 3 the transition of looking into the deceased partner's matter and taking over the same by the present partner. In any event, the inaction, if any, is not deliberate or with any motive. The applicants/appellants cannot gain anything by attempting to allow their appeal to abate and simultaneously continue to make the payments under the order of this Hon'ble Court till date. The proposed respondents are n9ot even been prejudiced and the account of their mother has been credited with the said amounts and therefore even their interest has been protected. No hardship has been caused to the proposed respondents. Even otherwise the misplacing of the letter in the applicant's advocates' office cannot and ought not to cause prejudice to the applicants' case which ought to be decided on merits. It is well settled that a technical approach ought not to be taken. The balance of convenience in the circumstances is in favour of the applicants. If the reliefs prayed for are not granted it would result in a meritorious appeal being defeated/dismissed without the issues being considered on merits. The proposed respondents may contest the matter on merits. In the circumstances narrated herein above assuming the advocates were intimated of the demise it is a fit case where the delay in applying for setting aside abatement is sufficiently explained and there is sufficient cause to condone the delay in applying to set aside the abatement.” I have also perused the rejoinder filed by the applicants in which they have denied to have received copy of the letter dated 18.12.2006. The respondents have not placed any material on record to show that copy of the letter addressed to the Advocates was received by the applicants. The learned counsel for the applicants fairly submitted that they do not have any proof in support of their contention. The applicants have also 4 denied that they attended the funeral of the deceased- respondent no.1, by filing rejoinder. Keeping that in view and considering the reasons stated in paragraph 31 of the application, the delay caused in filing this application, in my opinion, deserves to be condoned subject to payment of costs. Hence, I pass the following order. The delay in filing the application is condoned subject to payment of costs of Rs.5000/- to be paid to respondent nos 1 and 2, i.e. Smt Neelambari P Malvankar and Shri Hamanshu Jagatkumar Mungre, within a period of two weeks from today. The application is allowed in terms of prayer clause (b). Amendment to be carried out on or before 23.12.2010. Abatement , if any, is set aside. The civil application is disposed of. (D.B.Bhosale, J.)