1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.4023 OF 2008 Pankaj Nandkishore Mehta & Ors. .. Petitioners Versus Smt.Smruti Patel & Ors. .. Respondents Mr.Niranjan Vaghela i/by Pandya & Co for the petitioners. Mr.R.Tolat i/by M/s.L.C.Tolat & Co for the respondents. CORAM : A.S.OKA, J. DATE : 4 th August 2009. ORAL JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. On 09 th July 2008 this Court issued notice for final disposal at admission stage. 2. By this writ petition under Article 227 of the Constitution of India, the challenge is to the judgment and order dated 24 th April 2006 passed by the Appeal Bench of the Court of Small Causes by which Misc. Notice taken out by the petitioners has been dismissed by the Appeal 2 Bench. With a view to appreciate the submissions made, it will be necessary to refer to the facts of the case in brief. A suit was filed by one Mr.Ashok Patel (predecessor of the respondents) for declaration of tenancy before the Court of Small Causes. According to the case of the petitioners they had engaged services of an advocate and had filed a written statement. On 25 th January 2001, an ex-parte decree was passed in the suit. On 12 th September 2001 the petitioners applied for setting aside the ex- parte decree. The notice/application taken out by the petitioners for setting aside the ex-parte decree came to be dismissed on 22 nd January 2003. An appeal was preferred before the Appeal Bench of the Court of Small Causes. On 23 rd February 2005 the original plaintiff died. According to the case of the petitioners, they became aware about the death of the original plaintiff on 06 th July 2005. On 07 th July 2005 the Appellate Court passed an order recording abatement of the appeal. The petitioners thereafter took out a Misc.Notice for setting aside the order of abatement and for condonation of delay of 34 3 days. By the impugned order dated 24 th April 2006, the said notice was dismissed by the Appellate Court. 4. The Appellate Court observed in the impugned order that even assuming that the petitioner had no knowledge of the death of the respondent in the appeal till 06 th July 2007, the delay from that day till 11 th October 2005 i.e the date on which when the notice was taken out has not been explained. Therefore, the Appeal Bench proceeded to hold that there was no satisfactory explanation for the delay and on the basis of the said observation, the impugned order has been passed. 5. The learned counsel appearing for the petitioners submitted that the Appellate Court ought to have adopted a liberal approach. He submitted that in any event there is no material placed on record to show that prior to 06 th July 2005 the petitioners had knowledge of the death of the respondent in the appeal. He submitted that justice oriented approach ought to have been adopted by the Appellate Court. 4 6. The learned counsel appearing for the respondents supported the impugned judgment and order. He pointed out that the present petition has been lodged in the year 2008 and thus, there is a gross delay on the part of the petitioners in approaching this Court. He submitted that the petitioners have been completely negligent. As a result of the negligence, they have suffered an ex-parte decree and the Appellate Court has rightly held that there is no explanation for delay from 06 th July 2005 in applying for setting aside the abatement of the appeal. He submitted that no interference is called out. 7. I have carefully considered the submisions. The petitioner applied for setting aside ex-parte decree. The appeal preferred by them is for challenging the order of rejection of the application for setting aside ex-parte decree. There is nothing on record to show that prior to 06 th July 2005 the petitioners were aware of the death of the sole respondent in the appeal. The petitioners applied for condonation of delay and setting aside abatement. The said application was 5 filed on 11 th October 2005. It is true that from the date of knowledge of the death, there was some delay on the part of the petitioners. The delay was only of 34 days. In the facts and circumstances of the case the said delay ought to have been condoned by the Appellate Court. The respondents could have been compensated by ordering payment of costs. 8. There is a delay in filing this writ petition. Considering the facts of the case, the petition will have to be entertained especially when by the impugned order, the prayer for setting aside abatement of pending appeal is rejected. Therefore, considering the conduct of the petitioners they will have to pay heavy costs quantified at Rs.25,000/-. 9. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 24 th April 2006 passed in Misc.Notice No.579 of 2005 is quashed and set aside. The said Misc.Notice is made absolute in terms of 6 prayer clauses (a) to (c) thereof. (b) The petitioner shall pay costs quantified at a sum of Rs.25,000/- to the respondents. Accordingly, a pay order in the sum of Rs.25,000/- drawn in favour of the 1 st respondent is handed over by the learned counsel for the petitioner in the Court to the learned counsel appearing for the 1 st respondent. The learned counsel appearing for the 1 st respondent has accepted the said pay order without prejudice to the rights and contentions of the 1 st respondent. (c) Writ petition is allowed in above terms. (A.S.OKA,J)