1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No.345/2007 In Writ Petition No.4707/2007 (Decided) [Nathhu Dayaram Kesalkar .vrs. Sunil Tulshiram Ninave and another] ............................................................................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... Mr. Suresh Dhole, Advocate for the appellant, Mr. M.G. Solao, Advocate for respondent no.2. .......... CORAM : K.J. ROHEE AND R.C. CHAVAN, JJ DATED : APRIL 11, 2008 1. Heard the learned counsel for the appellant and the learned counsel for respondent no.2. Respondent no.1 is absent though served. 2. The father of respondent no.1 instituted a suit bearing RCS No.24/2002 for perpetual injunction against the appellant and respondent no.2, who are real brothers. During the pendency of the said suit, plaintiff Tulshiram died on 19.5.2004. His son Sunil (herein respondent no.1) moved 2 application on 22.2.2005 for setting aside abatement of the suit, for condonation of delay and for bringing legal representatives of deceased plaintiff. By order dated 24.8.2005, the trial court allowed the application. 3. It seems that the suit against defendant no.1 (appellant herein) was dismissed for non-payment of process fee on 1.9.2004 on the application moved on behalf of the plaintiff. The dismissal of the suit against defendant no.1/appellant was set aside and the suit was permitted to proceed against defendant no.1/appellant by order of the trial court dated 29.1.2007. Defendant no.1/appellant challenged the said order before the learned Single Judge. However, by order dated 11.10.2007 the writ petition filed by defendant no.1/appellant was dismissed. The said order is under challenge before us. 4. It was urged by the learned counsel for the appellant that the provisions of sub-rule 2 of rule 9 of order 22 of the CPC were not complied with while deciding various applications by the trial court and the trial court proceeded to set aside abatement, condonation of delay in bringing legal 3 representatives of deceased plaintiff without sufficient cause. We are not at all impressed by this submission. 5. A perusal of the application moved on behalf of the plaintiff itself shows that there was sufficient cause for the court to set aside the abatement, to condone the delay and to proceed with the suit and in fact, the appellant/original defendant no.1 cannot have any grievance about the impugned order passed by the trial court. We find no merit in the appeal. The same is, therefore, dismissed. JUDGE JUDGE GULANDE