1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3671 OF 2008 Smt.Kamal Shivaji Patole .. Petitioner versus Smt.Kalawati Shivaji Patole & Ors. .. Respondents Mr.P.J.Pawar for the petitioner. Mr.Prathamesh Bargude h/f Mr.S.B.Deshmukh for respondent No.1. CORAM : A.S.OKA, J. DATE ON WHICH JUDGMENT IS RESERVED. : 16th October 2009. DATE ON WHICH JUDGMENT IS PRONOUNCED. : 12th November 2009. JUDGMENT: 1) By this writ petition under article 227 of the constitution of India, the petitioner has taken an exception to the judgement and order dated 3rd May 2008 by which an application for condonation of delay in preferring an appeal has been rejected. 2) The petitioner made an application for grant of succession certificate. The succession certificate was applied in respect of the debts and securities 2 of her deceased husband. The learned trial judge rejected the prayer made by the petitioner. The learned judge proceeded to grant succession certificate in favour of the first respondent who had made a rival claim. There was a delay of eight months and 25 days in preferring an appeal against the said order. In the impugned order, the learned Judge observed that the petitioner used to remain absent before the trial court. The learned judge observed that the petitioner engaged 3 to 4 advocates. The learned judge recorded that the said advocates filed no instructions pursis. The learned judge held that the petitioner has not explained the delay. 3) The learned counsel appearing for the petitioner invited my attention to the averments made in the application for condonation of delay. He submitted that the petitioner who is an illiterate widow has explained the delay. He submitted that the widow has been denied succession certificate, but the first respondent has been granted the succession certificate. The learned counsel appearing for the first respondent opposed the petition by pointing out that there is absolutely no explanation for gross delay of more than eight months. He submitted that the first respondent is prevented from taking any benefit of impugned order. He submitted that no interference is called for with the discretionary order passed by the appellate court. 4) I have carefully considered the submissions. In the application for condonation of delay, the petitioner has stated that she was not properly 3 represented before the trial court. It is her case that she was not properly advised and that she was misguided .The petitioner has averred that she was suffering from chest, back and knee problems which prevented her from remaining present before the learned trial judge. Her case is that right from the beginning she was misguided her advocate. Another ground pleaded by is the petitioner is that she is an illiterate and helpless lady. 5) The learned district judge was impressed by the fact that the petitioner engaged 3 to 4 advocates and the said advocates filed no instructions pursis. It must be noted here that the appellate court has not recorded that any of the advocates obtained a valid discharge after following the procedure prescribed by the rules framed by this court under section 34 of the Advocates Act, 1961. The finding recorded that the petitioner was given an opportunity and that the petitioner was properly represented appears to be erroneous in the light of the finding recorded in the impugned order that about 3 to 4 advocates were engaged by the petitioner and that the said advocates filed no instructions pursis . The concerned advocates filed no instructions pursis without obtaining a discharge as a result of which the petitioner was not properly represented. 6) The petitioner is claiming to be the first wife of the deceased. The first respondent two is also claiming to be the widow has been granted succession certificate. An opportunity deserves to be granted to the petitioner 4 to challenge the order of the trial court on merits. In a matter of condonation of delay, a liberal and justice oriented approach was contemplated. In the present case the delay ought to have been condoned by ordering the petitioner to pay costs to the first respondent. A grievance was made by the learned counsel appearing for the first respondent that due to blanket stay granted by the appellate court, the first respondent could not withdraw any amount on the basis of the succession certificate granted in favour. Interests of justice will be served if during the pendency of the appeal preferred by the petitioner, the first respondent is permitted to withdraw 50% of the amount payable as per the succession certificate granted in her favour subject to furnishing security for the said amount to the satisfaction of the appellate court. 7) Hence, the petition must succeed. The amount of costs payable by the petitioner is quantified at Rs.2500/- which will be payable within a period of eight weeks from today. 8) Hence I pass following order : O R D E R : a) The impugned order is quashed and set aside. b) Miscellaneous civil application No. 1 of 2008 is hereby allowed subject to petitioner paying costs of Rs.2500/-to the first respondent within a period 5 of eight weeks from today. Deposit of the amount with the appellate Court within the stipulated time be treated as sufficient compliance. c) Out of the amount payable as per the succession certificate granted by the trial court, the first respondent will be entitled to withdraw 50% amount subject to furnishing adequate security to the satisfaction of the appellate court. d) The petition is partly allowed in above terms. e) The appellate court shall dispose of the appeal as expeditiously as possible and preferably within a period of six months from today. (A.S.OKA,J)