1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 55 OF 2009 IN TESTAMENTARY SUIT NO. 48 OF 2004 IN PETITION NO. 698 OF 2004 Ramchandra M. Sawant ..Deceased Shivaji Ramchandra Sawant ..Petitioner/Plaintiff versus Dinesh Ramchandra Sawant & Ors. ...Respondents/Defendants Mr. Suresh Gole i/b. M/s. Gole & Co. for Plaintiff / Petitioner. Ms. Rutuja Ambekar for Defendants / Respondents. CORAM : DR. D. Y. CHANDRACHUD , J. DATED : 10TH JULY, 2009. P.C. : 1. The Notice of Motion has been taken out for condoning a delay of 477 days in applying for setting aside the Order dated 30th November 2007 by which the Petition was dismissed in default. The Petition for the Grant of Probate in respect of the Will of the father of the Petitioner was filed on 13th September, 2004. An Advocate by the name of Mr. M. P. Shukla had filed his appearance. The case of the Petitioner is that on 19th May 2007, the Advocate left for the U.S., for medical treatment. It has been stated that 2 prior thereto, the matter had been followed up regularly and on 10th August 2005 the Notice of Motion for interim relief had been allowed. The Advocate was residing at Bhole Road, Dadar. It has been stated that after his return from the U.S., the Advocate went to reside at Vapi where his sons lived. He died on 24th June 2008 at Vapi. A copy of the Death Certificate issued by the Department of Health of the Government of Gujarat has been annexed. It has been stated that enquiries were made with the neighbours who were unable to furnish details of the contact address or telephone number at Vapi. Eventually on 14th March 2009 details were obtained and upon contacting the family of the Advocate, the Petitioner was informed that his Advocate had died on 24th June 2008. The court papers were collected on 16th March 2009 and the Managing Clerk of the Advocate informed the Petitioner about the dismissal of the case on 30th November 2007. In these circumstances, the Notice of Motion has been taken out for condoning the delay and for restoring the petition to file. 2. The Notice of Motion has been opposed. It has been submitted on behalf of the Respondents at the hearing that the Petitioner has not produced any medical papers to establish that his Advocate had in fact been suffering from a medical condition and that he had gone to the U.S. for treatment. The learned counsel submitted that the entire blame is sought to be shifted on the Advocate and it should have been possible for the Petitioner to 3 obtain information about the petition from the Registry. 3. Having heard Counsel, I am of the view that a fit case has been made out for condonation of delay and for restoration of the suit to file. There is no reason to disbelieve the Petitioner. The fact that Mr. M. P. Shukla had been engaged as an Advocate and that he had entered appearance is not in dispute. The death certificate of Mr. M. P. Shukla is also annexed. The Advocate died at Vapi. There is no justification to disbelieve the case of the Petitioner that the Advocate was 84 years of age, that he had to visit the U.S. for treatment, and that upon his return, he had shifted to Vapi. The Petitioner has not been negligent in pursuing the proceedings. In 2005 a Notice of Motion for interim relief had been taken out in which certain Orders were passed by the Court. There is no justification for depriving the Petitioner of his right to pursue the Petition on merits. The delay has been satisfactorily explained. In the peculiar circumstances that arise in this case it would not be reasonable to expect the Petitioner to be in possession of the medical papers pertaining to his Advocate. 4. In the circumstances, the Notice of Motion is made absolute in terms of prayer clauses (a) and (b). (DR. D. Y. CHANDRACHUD, J.)