IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8123 OF 2008 Shri Mahaling Shivling Rajamane & Ors..Petitioners V/s. Hanamant Ramkrishna Kulkarni & Anr. ...Respondents ...... Ms.Preeti B.Walimbe for Petitioners. Mr.Prafulla B.Shah for Respondents 1 & 2. ...... CORAM: CORAM: CORAM: A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. FEBRUARY FEBRUARY FEBRUARY 27, 2009. 27, 2009. 27, 2009. P.C. 1. Heard Counsel for the parties. 2. It is common ground that th Respondent/Appellant is a next door neighbour of the deceased predecessor of the Petitioners. Even so, the question is whether the Court below has exceeded its jurisdiction in showing indulgence to the Respondents by setting aside abatement and allowing the Respondents to bring on record heirs and legal representatives of the deceased predecessor of the Petitioners. That indulgence : 2 : has been shown essentially on the premiss that the Advocate of the predecessor of the Petitioners had failed to send intimation about the death of the concerned persons. For that reason, the Court showed indulgence to the Respondents by setting aside abatement. The view so taken is a possible view. 3. Counsel for the Petitioners, however, relies on the decision of Orissa High Court in the case of Braja Behera & Ors. v. Gandaram Behera & Braja Behera & Ors. v. Gandaram Behera & Braja Behera & Ors. v. Gandaram Behera & Ors. Ors. Ors. reported in AIR 1990 Oriss 94 reported in AIR 1990 Oriss 94 reported in AIR 1990 Oriss 94, which has observed that non-compliance by the opposite party of sending intimation about the death is not a sufficient cause for condonation of delay or for setting aside abatement. On the other hand, Counsel for the Respondents has invited my attention to reported Judgment of our High Court in the case of Atchut Upendra Raikar v. Surya Upendra Atchut Upendra Raikar v. Surya Upendra Atchut Upendra Raikar v. Surya Upendra Raikar Raikar Raikar (since deceased) through his LRs. & Ors. (since deceased) through his LRs. & Ors. (since deceased) through his LRs. & Ors. reported reported reported in 2006 (6) L.J.Soft 103 in 2006 (6) L.J.Soft 103 in 2006 (6) L.J.Soft 103 and another unreported decision in the case of Kisan Bajirao Kisan Bajirao Kisan Bajirao Babar Babar Babar v. Nilkanth Parabati Babar in Appeal from v. Nilkanth Parabati Babar in Appeal from v. Nilkanth Parabati Babar in Appeal from Order Order Order No.850 of 2000 dated 1st August 2006 No.850 of 2000 dated 1st August 2006 No.850 of 2000 dated 1st August 2006 which has taken the view adopted by the lower Court in : 3 : showing indulgence to the Respondents as aforesaid. The decision of our High Court is binding on me as well as the Petitioners before this Court. In the circumstances, following the same view, I have no hesitation in observing that the grievance of the Petitioners will have to be rejected. 4. Counsel for the Petitioners lastly contends that in that case, the Court ought to have considered that the Petitioners should be compensated by way of cost for the delay of more than six years, particularly, when the Respondent/Appellant before the lower Court was aware about the death of the concerned party who was staying as next door neighbour. To this limited extent, the Petitioners would succeed although Counsel for the Respondents submits that even in the two cases relied by him no such cost was imposed. In the cases referred to by the Respondents, the delay was not of six years but of lesser period, if not insignificant one. 5. In the circumstances, the order passed by the Court below is upheld on condition that the Respondent/Appellant shall pay cost quantified at : 4 : Rs.1,000/- (Rupees One Thousand) to the Petitioners as condition precedent for sustaining the said order. 6. Petition disposed of on the above terms. 7. As the Appeal pertains to year 1990, the Appellate Court shall ensure that the same is finally disposed of as expeditiously as possible, preferably not later than 31st July 2009. This direction is issued on the assurance given by the Counsel for the parties that they shall extend full cooperation to the lower Court for early disposal of the Appeal and shall not ask for adjournments or keeping back matter on given dates. That assurance is accepted. A.M.KHANWILKAR, J.