1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2454 OF 2008 IN APPEAL (L) NO.362 OF 2008 IN NOTICE OF MOTION NO.239 OF 2006 IN SUIT NO.206 OF 2004 Ketan Jayantilal Shah and Anr. .. Appellants Vs. Rohitkumar Amrutlal Shah and Ors. .. Respondents Mr.Tushar Goradia for the appellants Mr.Paritosh Jaiswal alongwith Mr.Ashutosh Gavnekar i/b M/s.Kanga and Co. for respondent nos.3 to 11, 13A and 13B Ms.Leena Shah i/b M/s.Niranjan and Co. for respondent nos.14 and 15 CORAM : J. N. PATEL & Smt.R.P.SONDURBALDOTA, JJ DATE : 12TH OCTOBER, 2009 P.C. : 1. Heard. 2. Taking into consideration that the matter being a suit for partition, though the lapses on the part of the appellant (original plaintiff) does not 2 require to be condoned and the learned single Judge in the impugned order offered to the plaintiffs to pay cost so that delay can be condoned, unfortunately, even that was not acceptable to the learned Advocate who was then appearing for the plaintiffs. 3. The contention of the learned counsel for the respondents is that the appellant is a chronic defaulter and even in this case, the appeal has been filed after 965 days of delay. In the peculiar facts and circumstances of the case, we are inclined to condone the same as there is another suit filed by one of the legal heirs. 4. We condone the delay but subject to cost of Rs.50,000/- each to be paid by the appellants on or before 10/11/2009 by depositing the same in this court. On such deposit being made, the respondent nos.3 to 13 would be entitled to withdraw the same and appropriate it in equal proportion. We make it clear that on failure to deposit the cost as directed by this court, notice of motion would stand dismissed. On the aforesaid condition, notice of motion is made absolute in terms of prayer clause (a). Appeal be listed for admission on 10.11.2009. ( J. N. Patel, J) (Smt.R.P.Sondurbaldota, J) 3