1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5947 OF 2009 Hanumant Ganpat Godse .. Petitioner versus Shrimant Vitthal Godse & Ors. .. Respondents Mr.Ajit J. Kenjale for the petitioner. Mr.R.N.Bansode for respondent Nos.1 to 3. CORAM : A.S.OKA, J. DATE : 9th March 2010. P.C.: . Notice for final disposal was issued on 7th August 2009. Heard learned counsel appearing for the petitioner and the learned counsel appearing for the 1st to 3rd respondents. The 1st to 3rd respondents are the original plaintiffs and the present petitioner is the original 2nd defendant. The suit filed by the 1st to 3rd respondents was decreed on 25th January 2008. An appeal alongwith application for condonation of delay was filed on 3rd May 2008 before the District Court. The case made out by the petitioner was that during the pendency of the suit his father who was the 1st defendant died. It is contended that the written statement was filed. The case of the petitioner is that advocate had assured the petitioner that date of hearing of the suit will be informed and only thereafter the petitioner should attend the Court. As the petitioner did not receive any intimation from his advocate and as he learnt from the villagers that the suit has been decided, on 4th March 2008 the petitioner made inquiries in the Court and he realised that on 25th January 2 2008 the suit has been decreed. On the very day application was made for grant of certified copy of judgment and decree and certified copies were received on 24th April 2008. Application for condonation of delay was filed on 3rd May 2008. The said application was opposed by the 1st to 3rd respondents by contending that the petitioner was negligent and in fact there was a settlement taken place way back in the year 1986 between the petitioner’s father and 1st to 3rd respondents. 2. The learned Adhoc District Judge rejected the application by the impugned order by observing that the advocate representing the petitioner had sent an intimation to the petitioner which was returned with the remark “not claimed” and thereafter the advocate filed “no instruction pursis” on 24th November 2006. The learned Judge observed that the petitioner wants to prolong family dispute. 3. The learned counsel appearing for the petitioner submitted that the delay was only on 40 days and considering the reasons set out in the application, the Appellate Court ought to have condoned the delay. The learned counsel appearing for the 1st to 3rd respondents has relied upon the settlement of the year 1986 which was allegedly entered into by the petitioner’s father with 1st to 3rd respondents. He submitted that the petitioner was negligent and he did not accept the letter sent by the advocate and therefore the advocate was required to file no instruction pursis way back on 24th November 2006. He submitted that the petitioner has no defence in the 3 suit as there is already a settlement in the year 1986. He, therefore, submitted that no interference is called for. 4. I have considered the submissions. As stated earlier, the case of the petitioner is that he became aware of the judgment and decree dated 25th January 2008 for the first time on 4th March 2008. The certified copies were applied for on the same day and the same were delivered to the petitioner on 24th April 2008. The appeal was preferred on 3rd May 2008. The allegation in the application is that advocate appointed by him had assured him to communicate the date fixed for final hearing of the suit when presence of the petitioner will be required. The submission of the learned counsel appearing for the 1st to 3rd respondents is that the intimation given to the petitioner by the advocate is on record and thereafter the advocate filed no instruction pursis. This Court has taken a view that no instruction pursis does not amount to discharge of the advocate and discharge can be obtained by an advocate only after following procedure prescribed by rules framed by this Court under section 34 of the Advocates Act, 1961. The opposition is also on the ground that there was a settlement between the petitioner’s father and 1st to 3rd respondents in the year 1986. However, that is an aspect dealing with merits of the appeal with which we are not concerned today. Suffice it to say that the delay was of about 40 days and there is a reasonable explanation for the said delay. At this stage it is not necessary to go into the merits of the decree. While deciding the application under section 5 of the Limitation Act, 4 1963, the learned Appellate Court ought to have adopted a liberal and justice oriented approach. This was a case where subject to payment of costs the delay ought to have been condoned. Hence, petition succeeds. The petitioner will have to pay costs to the 1st to 3rd respondents quantified at Rs. 7,500/-. 5. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 12th June 2009 is quashed and set aside. Miscellaneous Civil Application No.126 of 2008 is allowed. (b) The petitioner shall pay costs of Rs.7,500/- to 1st to 3rd respondents within a period of six weeks from today. Payment of costs will be a condition precedent. The deposit of the amount of costs with the Appellate Court within the stipulated time will be treated as sufficient compliance. It is made clear that if compliance is not made with the order of payment of costs, the impugned order will stand. (c) Hearing of the appeal is expedited. (d) Petition is allowed in above terms. (A.S.OKA,J)