-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 546 OF 2010 IN APPEAL NO. 608 OF 2005 IN SUIT NO. 40 OF 1982 Pestonji D. Zilla. ..Appellant. Versus Jamshed N. Guzdar and others. ..Respondents. AND Parinda w/o Shiraz Zilla & Ors. ..Applicants. AND CHAMBER SUMMONS NO. 547 OF 2010 IN APPEAL NO. 609 OF 2005 IN SUIT NO. 58 OF 1982 Pestonji D. Zilla. ..Appellant. Versus Jamshed N. Guzdar and others. ..Respondents. AND Parinda w/o Shiraz Zilla & Ors. ..Applicants. Mr. Sanjay Jain i/b Pandey & Co., for the Applicant. Ms. Rajni Iyer, Sr. Advocate with Ms. Manjiri Shah i/b Mulla & Mulla & Craigie Blunt & Caroe for the Respondents. Coram : D. K. DESHMUKH & R. V. MORE, J. Date : April 27, 2010. P. C. : 1. By this chamber summons, the appellant seeks condonation of delay in filing this chamber summons for setting aside the abatement of appeal. The relevant facts are that two appeals were filed on 29th October 2004 by the appellant – Pestonji D. Zilla challenging the -: 2 :- judgments and decrees dated 30th September 2004 passed by the learned Single Judge of this Court. By those decrees, the suit filed by the appellant was dismissed and the suit filed by the respondent was decreed. There were office objections in the appeals. The appellant was admitted in hospital on 3rd June 2005, the appeals were pending. The appellant expired on 9th November 2005. The applicants took out this chamber summons claiming that delay in making application for setting aside the abatement should be condoned because they were not aware about the pendency of the appeals. This fact is seriously disputed on behalf of the respondents. It is pointed out there was probate petitions pending bearing No.311 of 1998, to which applicant no.3 is party. In those proceedings, an affidavit was filed on behalf of the respondent and in that affidavit it was clearly mentioned that the suit filed by the appellant has been dismissed and the suit filed by the respondent has been decreed. But when this chamber summons was taken out while claiming that the applicants were not aware about pendency of the appeal, that affidavit dated 28th June 2007 was not referred to and it was not disclosed that applicant no.3 was aware of the decision of the learned Single Judge. . On 2nd August 2009, the notice was given on behalf of the advocates for the applicants claiming ownership to the property. It is clear from what is observed above, that atleast on 28th June 2007 applicant no.3 was aware of the disposal of two suits and therefore -: 3 :- applying the Prudent Man test, it was expected of applicant no.3 that he will find out what steps were taken by deceased against the judgment of the learned Single Judge. Not only that there is no explanation given. Even acquisition of the knowledge about the judgment by affidavit dated 28th June 2007 is suppressed. . Learned counsel appearing on behalf of the Applicant relying upon judgment of the Apex Court in the matter of N. Balakrishnan v. M. Krishnamurthy reported in (1998) 7 SCC 123 submits that the power of the Court to condone delay is to be liberally exercised. In our opinion firstly there is no explanation in the present case as to what steps were taken by the applicant after coming to know of the orders/decrees passed by the learned Single Judge, on 28th June 2007 and secondly the fact that the applicants have suppressed that they became aware of the judgments of the learned Single Judge in 2007 disentitle the applicants to any relief which in the discretion of Court. Litigation between the parties came to and end in the year 2005. Now, in our opinion, it will be unjust to permit revival of that litigation at the instance of the applicants who are not only clearly negligent but are also guilty of suppression of material and relevant facts. The chamber summonses are dismissed. (D. K. DESHMUKH, J.) (R.V. MORE, J.)