1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CA NO.10082/2008 IN CAST NO.18465/2008 IN SECOND APPEAL NO. 236 OF 1990 ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- CORAM : K.U.CHANDIWAL, J. DATE : 14 th July, 2009. . Heard Mr.MN Navandar for the appellant and Mr.DR Bhadekar for respondent. 2) The delay of 1763 days, for bringing the legal representatives of sole appellant on record, is sought to be condoned with a request to set aside the abatement and also the order of dismissal. 3) Sole appellant – Eknath expired on 23rd August, 2003, leaving behind his legal representatives named in the application. It is canvassed in paragraph no.2 of the application, they were not knowing the procedure in respect of taking steps in the Second Appeal after death of Eknath. Further, the legal representatives learnt on telephone that the Second Appeal is listed for final hearing at serial no.64 2 on 1st September, 2008, at that time the legal representatives informed the counsel that the appellant is no more. However, no steps even thereafter are taken. The third paragraph of the application deals with ignorance of the legal representatives in adopting the steps. In 4th and 5th paragraphs it is canvassed that there should not be a presumption that the delay is occasioned deliberately or on account of culpable negligence. 4) The grounds mentioned and argued by the counsel are not sufficient to condone exorbitant delay. The right envisaged to the appellant, having lost by their own negligence, should necessarily be not to the detriment of the respondents. It is not that the legal representatives were totally unaware of the proceeding, but the slackness demonstrated by them in attending the matter, and for exorbitant period of virtually more than five years, will not entitle them to have fresh ground though the appeal is abated and dismissed. The communication by the Counsel about listing of the appeal, even if was for the first time, should have been attended to promptly. That exercise is also recklessly not done. 5) Mr.Bhadekar took recourse to 3 the Judgment of the Hon’ble Supreme Court in the matter of Lal Chand Vs. Paras Ram reported in 2000 (5) Supreme 26 equivalent citation – 2000 AIR (SCW) 4939, to stress that the grounds mentioned in the present application were uniformly identical in the matter before the Hon’ble Supreme Court and the delay was not condoned or abatement was not set aside. 6) Mr.Navandar informs that the Judgment cited by the counsel referred to above will not be applicable to the facts of the present case. 7) Taking survey of above facts, the application lacks merit, it is accordingly dismissed. ( K.U.CHANDIWAL ) JUDGE bdv/ca10082.08