9cas182-10.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 182 OF 2010 IN S.A. (st.) NO. 30766 OF 2009 Mahadev Bapu Phalle, since deceased through his legal heirs : Chandrakant M. Phalle ... Applicant. V/s. Subhash Anna Mudhale & Ors. ... Respondents. --- Mr. Bhushan A. Walimbe for the Applicant. Mr. Vaibhav Gaikwad h/for Mr. A.M. Kulkarni for Respondent No.1. --- CORAM:- G.S. GODBOLE, J. DATED :- 14TH OCTOBER, 2011. P.C. : 1 Leave to amend the C.A and insert averments and prayer clause for leave to file an Appeal since Appellant- Chandrakant was not a party in the Trial Court and the District Court but his father Mahadev was a party who has died on 14.8.2008. Amendment to be carried out forthwith in the Court. 2 The Application for leave to file an Appeal and the delay is strongly opposed. Advocate for the Respondent submitted that since the dispute is 9cas182-10.sxw 2 about lane for approaching the house, the contention of the Appellant that he was not aware about the decision cannot be accepted. I have considered the submissions. The fact that the deceased Mahadev who was original Defendant has died on 14.08.2008 is not disputed. The medical certificates annexed to the Application clearly show that he was suffering from various ailments and the fact that he was very old at the time of death is also not disputed. The averments in the C.A. to the effect that the Appellant learnt about the impugned Judgment and Order for the first time on 1st October, 2009 is also not shown to be factually incorrect. In view of this, a case for condonation of delay in filing the Appeal is made out. Prejudice to the Respondent No.1 can be compensated by awarding a cost quantified at Rs.5000/-. 3 Civil Application is allowed in terms of prayer clause A (A-1) as amended. Cost to be paid by the Applicant to the Respondent No.1 or his Advocate or deposit in this Court within a period of 4 weeks from today. Payment of costs will be condition precedent and if cost is not paid/deposited, the C.A. will stand dismissed automatically without further reference to the court. If cost is paid/deposited, office to number the Second Appeal and list the same as per CMIS. [G. S. GODBOLE, J.]