1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.538 OF 2008 IN SECOND APPEAL NO.47 OF 1995 Sau. Sundara Anant Sawant .... Applicant Vs. Savitrabai @ Vaijayanta .... Respondents Yeshwant Sawant (deceased) through her LRs. Mr. Umesh R. Mankapure, Advocate for Applicant. Mr. G.S. Hegde, Advocate with Mr. C.M. Lokesh, Advocate for respondents no.1 to 3. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 19th December, 2008 P.C. 1. This Civil Application is taken out by the applicant for bringing the heirs of respondent No.1 on record by condoning the delay and setting aside abatement of the appeal. The application is opposed by the heirs of respondent No.1. 2. The applicant and original respondent No. 1 are sisters. Respondent No.1 died on 3rd February 2006. But no steps were taken by the applicant for bringing her heirs on record within the prescribed period of limitation. Mr. Hegde, learned counsel for respondents No. 1 to 3 by his letter dated 23rd November 2006 informed the applicant about the death of respondent 2 No.1 and also names of heirs of respondent No.1. Thereafter the present application came to be filed on 3rd January 2008 i.e. after the delay of more than two years. The applicant claims that after receipt of the letter dated 23rd November 2006, she had approached her Advocate in the trial Court with a request to take appropriate steps to bring the heirs of respondent No. 1 on record. The learned Advocate however, through oversight, did not make the necessary application. Thereafter there was change of Advocate. The new Advocate after taking inspection of the proceedings realised that the legal representatives have not been brought on record and filed the instant application. 3. Mr.Hegde, the learned counsel for the respondents submits that both the applicant and respondent No.1 being sisters and residing in the same district, the applicant was well aware about the death of respondent No.1 on 3rd February 2006. However, despite the fact, in discharge of his legal duties, he sent letter dated 23rd November 2006 to the applicant. The explanation sought to be offered by the applicant in the civil application is only for the period subsequent to receipt of the letter. There is no explanation in the Civil Application for the initial delay from the date of 3 death of respondent No.1 to the date of intimation. It is not claimed in the application that applicant was not aware of death of respondent no. 1 for any reason. 4. Mr. Mankapure, the learned counsel for the applicant submits that the court needs to take lenient view in the matter of condonation of delay and grant relief by compensating the respondents with costs. Undoubtedly in the ordinary course the courts do take a lenient view in such matters, however, provided that some semblance of a case is made out for condonation. In the instant case for the initial period, there is no explanation whatsoever. As regards the subsequent period, the explanation offered cannot be said to be sufficient. The applicant claims to have contacted the trial court lawyer for making an application in the High Court proceedings. Thereafter the matter is not pursued at all for two years. It is not the case of the applicant that she has filed any proceedings against either of her lawyers for negligence. 5. Mr. Mankapure, the learned counsel for the applicant then submits that since one of the heirs of respondent no. 1 i.e. her son is already on record, the appeal cannot be said to have been abated. In this 4 connection, he relies upon the decision of the Apex Court in Mithailal Dalsangar Singh and others vs. Annabai Devram Kini and others reported in (2003) 10 Supreme Court Cases 691. In the decision cited it has been held that if all the legal representatives of deceased party to the proceedings are already on record, the proceedings should not be treated as having been abated. In the instant case, only one of the heirs of respondent no. 1 i.e. her son is on record. The daughter of respondent no.1, is not a party to the proceedings and hence not on record. In these circumstances, the decision cited by Mr. Mankapure is not applicable to the facts of the present case. It is obvious that there is substantial delay in filing the application despite receiving information from the Advocate for deceased- party. There is no explanation for this delay. In the instant case, the impugned order being a decree in a suit for partition, abatement of the appeal against one of the parties is abatement in entirety. The Civil Application is rejected. (SMT.R.P. SONDURBALDOTA,J)