1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 67 OF 2009 IN TESTAMENTARY SUIT NO. 19 OF 1987 IN TESTAMENTARY PETITION NO. 466 OF 1986 Prabhakar S. Pawaskar ...Plaintiff. Vs. Sumati Gopal Pawaskar (Since deceased) Gopal H. Pawaskar ...Defendants. .... Mr.J.M.D’Silva for for the Plaintiff. Mr.D.R.Mishra for the Defendants. .... CORAM :- ANOOP V. MOHTA, J. DATED :- 21st JULY, 2009. P.C.- 1. In the petition for probate, plaintiff has taken out this motion to condone the delay of 1460 days and to set aside the abatement of the suit and to restore the suit. 2. Admittedly, on 26th November 2007, none appeared for the petitioner. On the basis of Cavetor’s submission, the proceeding stood disposed of as abated. The advocate for petitioner/plaintiff defaulted, in spite of the chamber summons no.8/2005 being made absolute on 2 9th June 2005, in carrying out the amendments and to take steps and therefore the impugned order of dismissal of the suit. 3. Considering the averments made, including admitted default/inaction on the part of the advocate, no reason that the parties to suffer on that count. Normally it is the advocate who carries out the amendment. 4. The apex Court has observed in Raj Kishore Pandey V. State of U.P. & Ors., A.I.R. 2009 SC 1640, as under : “10. ........ No doubt, the consideration of the existence of sufficient cause is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the court in such matters should be to advance the cause of justice and not the cause of technicalities. A case as far as possible should be decided on merits and the party should not be deprived to get the case examined on the merits.” 5. In such circumstances the default of advocate should not be the reason not to consider the case of the litigant, ultimately the sufferer. Therefore, in the interest of justice as a sufficient case is made out and in a suit /petition like this, I am inclined to allow this motion. Resultantly, the motion is allowed in terms of prayer clauses (a), (b) & (c). However, this is subject to cost of Rs. 10,000/- (Rupees ten thousand) to be paid within one week. 3 6. The motion is allowed accordingly. (ANOOP V. MOHTA, J.) skt/-