1 57 wp.7266.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 7266 OF 2011 Smt. Geeta Brijmohan Verma w/o Mr.Brijmohan Verma and others. ... Petitioners Versus M/s. Neev & Mehta Group and others. ... Respondents ----- Mr.Chandrakant N. Chavan for the Petitioners. Mr. Sanjay Jain a/w Ms Sarika Mehra i/b LJ Law for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 16 th December, 2011. P.C. 1 Heard the learned counsel appearing for the Petitioners. 2 The Petitioners are the legal representatives of the original Defendant No.1 and the Respondent No.1 is the original Plaintiff. The Defendant No.1 died on 6 th December, 2009 and an application for setting aside the abatement of the suit was made by the Respondent No.1 on 17 th February, 2011. The said application has been allowed by the impugned order. 2 57 wp.7266.11 3 The learned counsel appearing for the Petitioners pointed out that the Constituted Attorney of the Defendant No.1 filed an intimation as required by Rule 10-A of Order XXII of the Code of Civil Procedure, 1908 on 12 th January, 2010. He pointed out the roznama of the proceedings. He pointed out that after filing of the said intimation, the suit was repeatedly adjourned to enable the Respondent No.1 to take steps for bringing the legal representatives of the deceased – Defendant No.1 on record. He submitted that even going by the assertions made in the application by the Respondent No.1, the said Respondent had knowledge of the death in March 2010. He pointed out that the Respondent No.1 has tried to blame its earlier Advocate. He submitted that the affidavit of the earlier Advocate representing the Respondent No.1 is not filed on record. He, thus submitted that this is a case of gross unexplained delay. Relying upon various decisions of the Apex Court, he submitted that this is not a case where liberal approach could have been adopted as the compliance with Rule 10-A of Order XXII of the said Code was made long back. 3 57 wp.7266.11 4 I have given careful consideration to the submissions. In the application taken out by the Respondent No.1 itself, there is a reference to compliance with Rule 10-A of Order XXII of the said Code. It is stated that the Advocate engaged earlier by the Respondent No.1 did not inform the Respondent No.1 about the intimation of death given by the Constituted Attorney of the Defendant No.1. It is alleged that on 10 th March, 2010, a new Advocate appointed by the Respondent No.1 filed Vakalatnama who informed the Respondent No.1 to make an inquiry as regards the names of the legal representatives of the deceased Defendant No.1. It is averred that though the earlier Advocate had received particulars of the legal representatives, he did not disclose it to the Respondent No.1. Therefore, it is asserted that the Respondent No.1 on making inquiry became aware of the names of the legal representatives in the last week of January 2011 and therefore, the application was made on 17 th February, 2011. 5 It is true that the Constituted Attorney of the Respondent No.1 had intimated the Court about the death of the Defendant No.1 by 4 57 wp.7266.11 filing an application. The roznama shows that the said application was filed on record on 13 th January, 2010 and thereafter, the suit was repeatedly adjourned for taking steps. There is nothing on record to show that the Respondent No.1 was made aware by its Advocate as regards filing of the intimation. The specific case of the Respondent No.1 is that the earlier Advocate did not inform about the intimation under Rule 10-A of Order XXII of the said Code and the particulars supplied to him of the legal representatives. The learned counsel appearing for the Petitioners submitted that the affidavit of the said Advocate ought to have been filed. One cannot expect an Advocate to file an affidavit and accept the blame. The explanation for delay in the application has been accepted by the learned trial Judge and the delay has been condoned and the abatement has been set aside. 6 This is not a case where power of superintendence under Article 227 of the Constitution of India can be invoked. Hence, the petition is accordingly rejected. [ A.S.OKA, J ]