1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 66 OF 2009 IN PETITION NO. 241 OF 1993 Gangaram Dulaji Dudhwadkar ..Deceased Prabhakar Shivram Pawaskar ..Petitioner versus Smt. Sumati Gopal Pawaskar (since deceased) her legal heir and representative Gopal Harishchandera Pawaskar & Ors. ..Respondents Mr. J. M. D’silva for Petitioner. Mr. D. R. Mishra for Caveator / Respondents. CORAM : DR. D. Y. CHANDRACHUD , J. DATED : 10TH JULY, 2009. P.C. : 1. The Notice of Motion has been taken out for condoning the delay of 1460 days and for extension of time to carry out an amendment which was allowed by an Order dated 9th June, 2005. 2. The Petition was filed for Letters of Administration of the last Will and Testament of Gangaram Dudhwadkar dated 31st October 1958. The 2 deceased Defendant had filed a Caveat. The Caveator died intestate on 28th December, 2003 leaving behind her the Respondents as heirs and representatives. A Chamber Summons being Chamber Summons No. 8 of 2005 was taken out. The Chamber Summons was allowed on 9th June 2005. At the hearing, the Advocate and the Petitioner were absent. The Court directed that an amendment to bring the legal heirs on record be carried out within two weeks. It has been stated that the Advocate was not regular in attending to the Court and it was in the 3rd week of April 2009 that the Petitioner learnt that the Petition had been disposed of. The Advocate in his letter dated 26th April 2009 to the Petitioner stated that he had lost track of the matter. 3. There is undoubtedly a delay on the part of the Petitioner in taking out a Notice of Motion. However, this is not a case where it can be said that there is a deliberate or wilful inaction or negligence on the part of the Petitioner. There is no reason why the Petitioner should be deprived of seeking recourse to the remedy which he has adopted, however, subject to the payment of costs. 4. In the circumstances, the Notice of Motion is made absolute in terms of prayer clauses (a) and (b) subject to the payment of costs quantified at Rs. 3,000/- (Rupees Three Thousand) to the Respondents. The costs shall be 3 paid within a period of one week from today to the Advocate for the Respondents and shall be a condition precedent. 5. Office is directed to convert the Petition into a Suit. (DR. D. Y. CHANDRACHUD, J.)