: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE JURISDICTION & INTESTATE JURISDICTION & INTESTATE JURISDICTION NOTICE NOTICE NOTICE OF OF OF MOTION NO.118 OF 2007 MOTION NO.118 OF 2007 MOTION NO.118 OF 2007 IN IN IN MISCELLANEOUS MISCELLANEOUS MISCELLANEOUS PETITION PETITION PETITION NO.14 OF 2006 NO.14 OF 2006 NO.14 OF 2006 IN IN IN PETITION PETITION PETITION NO.565 NO.565 NO.565 OF 2003 OF 2003 OF 2003 Dr.Adi H.Dastoor & Anr. .. Plaintiffs. Versus Daryus S.Panthakey .. Defendant. Ms.Kavita Shah for plaintiffs. Mr.Sanjay Jain with Mr.Vinod Thaker for defendant. CORAM CORAM CORAM : V.C.DAGA, J. : V.C.DAGA, J. : V.C.DAGA, J. DATE DATE DATE : 10th March, 2008. : 10th March, 2008. : 10th March, 2008. P.C.: P.C.: P.C.: 1. Miscellaneous Petition No.14 of 2006 moved in Petition No.565 of 2003 was dismissed by the learned Single Judge of this Court on 23rd June, 2006, since nobody had appeared on behalf of the petitioners. Even on the previous date i.e. 22nd June, 2006, nobody was present on behalf of the petitioners when the matter was called out. The original petitioners were Dr.Adi : 2 : H.Dastoor and Mrs.Zarine N. Khambatta. 2. After dismissal of the Miscellaneous Petition by an order dated 23rd June, 2006, the present Notice of Motion No.118 of 2007 was taken out on 14th November, 2007, seeking condonation of delay of about 477 days and for setting aside the order dated 23rd June, 2006. 3. In support of the notice of motion, affidavit of the petitioner Nos.1 and 2 dated 14th November, 2002 is filed; wherein a statement is made that the petitioner No.1 - Dr.Adi H.Dastoor died on 15th September, 2006. In other words, much before presentation of the present notice of motion, petitioner No.1 left for heavenly abode. Present petition is moved showing Dr.Dastoor as petitioner No.1 and Mrs.Zarine Khambatta as petitioner No.2 and the learned Advocate has signed for petitioner without mentioning as to whether the learned Advocate is appearing for petitioner No.1 or 2 or both. A statement is made in the subject affidavit that the petitioner No.1 died on 15th September, 2006, still the motion is moved on behalf of Dr.Adi H.Dastoor (since deceased) as well as Mrs.Zarine Khambatta. The heirs and legal representatives of Dr.Adi H.Dastoor are not parties to this notice of motion. 4. When this fact was brought to the notice of the learned Advocate for plaintiffs, she submitted that after : 3 : restoration of the petition, the heirs and legal representatives would be brought on record. 5. In the above view of the scenario, in my view, no petition can be moved on behalf of a dead person. Secondly, the petition cannot be moved for restoration in absence of the heirs and legal representatives of Dr.Adi H.Dastoor, being parties to the motion, especially, when Mr.Dastoor is surviving by his kin & kith. 6. In the above view of the matter, present Notice of Motion itself is not maintainable. The same is liable to be rejected as such with no order as to costs. (V.C. (V.C. (V.C. DAGA, J.) DAGA, J.) DAGA, J.)