1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1166 OF 2009 Jaywant Chandarrao Mohite. ..Petitioner. V/s. Bhaskar Vishnu Kulkarni since deceased through his legal heirs: 1A. Shri Nagesh Bhaskar Kulkarni & Ors. ..Respondents. Mr.Bhushan A. Walimbe for petitioner. Mr.P.M.Arjunwadkar for Respondent Nos. 1A to 1E. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Arjunwadkar waives notice for Respondent Nos. 1A to 1E. 4. As short question is involved, Petition is taken up for hearing forthwith by consent. 5. This Petition under article 227 of the Constitution of India takes exception to the Judgment 2 and Order passed by the Additional District Court, Karad dated 7th October, 2008 below Exh. 45 and 46. By this order the application preferred by the Petitioner for condonation of delay in bringing legal representative of the deceased Respondent on record and setting aside abatement of the appeal has been rejected. The relevant fact for answering the point in issue is that the Respondent Bhaskar Vishnu Kulkarni died on 23rd May, 2006, whereas the application for setting aside abatement was filed on 18th December, 2007. The Court below has noted that the delay was of 575 days and that the explanation was very vague. The only explanation stated is that the Petitioner was sick and operated during the relevant period. The Court below has opined that the Appellant and the Respondent were residing as neighbours and there was no reason for the Petitioner not to file the subject application with immediate dispatch. Correctness of this view is assailed in the present Petition. Indeed, no fault can be found with the view taken by the lower Court that when the parties were residing as neighbours it can be assumed that the Petitioner has full knowledge about death of the Respondent and was expected to file necessary application for bringing the legal heirs and representative on record. However, by now it is well 3 established that if the advocate or the legal heirs of the deceased party fail to send intimation which they are duty bound by virtue of amended provisions of CPC, the opposite party cannot be non-suited on the ground of delay. In such a case, delay will have to be condoned. In the present case, as it is not in dispute that such intimation was given only on 18th September, 2007 and the subject application was filed within 90 days therefrom, applying the above said principle, the delay deserves to be condoned and the abatement set aside. Accordingly, the impugned Judgment and Order is set aside and instead Applications Exh. 45 and 46 are allowed on condition that the Petitioner shall carry out amendment in the proceedings pending before the lower Court in terms of this Order within four weeks from today and in addition, deposit Rs.2,500/- in the lower Court to be made over to the Respondent as condition precedent for showing this indulgence. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)